Free Response - District Court of Colorado - Colorado

Case 1:03-cv-00097-WDM-MJW

Document 218

Filed 03/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-00097-WDM-MJW ______________________________________________________________________________ PRAIRIELAND PROCESSORS, INC., a Colorado corporation, Plaintiff and Counterclaim Defendant v. RIDGEFIELD FARMS, LLC, a Connecticut limited liability company, et al. Defendants ______________________________________________________________________________ DEFENDANTS' RESPONSE TO OBJECTIONS TO DEPOSITION TESTIMONY OF MORRISS AND DAMORE ______________________________________________________________________________ Defendants Ridgefield Farms, LLC ("Ridgefield"), West-Conn Meat Co., Inc ("WestConn"). and Richard Greenfield, by their undersigned counsel, respectfully submit their response to Plaintiff and Counterclaim Defendant Prairieland Processors, Inc.'s ("PPI") objections to their designations of the deposition testimony of Lawrence D. Morriss and Rick Damore. PPI's Objections to Morriss' Testimony and Related Exhibits P. 17, L. 7 - P. 18, L.22 and P. 20, L. 24 - P.21, L. 10. PPI asserts hearsay and relevance objections, with a specific objection to admission of Exhibit A-44. The exhibit is relevant because (1) it shows PPI's state of mind in January 2001 with respect to the potential causes of its business losses; (2) it contains Crossroads' conclusions as to what further investigations should be performed; and (3) it lays a foundation for PPI's rejection of Crossroads' recommendations, which in turn establishes that PPI did not want to learn facts that likely would

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Case 1:03-cv-00097-WDM-MJW

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undercut its claims against Defendants. Consistent with the Court's ruling on the admission of Exhibit A-45, the exhibit and testimony is not hearsay under F.R.E. 801(d)(2)(D) because it is the statement of an agent regarding matters within the scope of its agency during the period of its agency. The December 29 e-mail from Morriss to Simon, Etlin, Ford and Ball establishes that PPI had engaged Crossroads as of the time that e-mail was sent and is admissible to establish the fact of agency. See F.R.E. 801(d)(2) (statement of putative agent admissible to establish agency). That e-mail is also admissible as a business record of Crossroads containing admissions made by Jochum on behalf of PPI. F.R.E. 803(6). P. 25, L. 11 - P.26, L. 1; P. 26, L. 2 -- P. 28, L. 5; P. 28, L. 17 - P. 29, L. 7; P. 30, L. 1113.. PPI asserts hearsay and relevance objections and objects to admission of Exhibit A-40. The evidence is relevant because it further establishes that Crossroads was acting as the authorized agent of PPI when it prepared its report. The evidence also shows PPI's state of mind regarding the cause of its losses as of January 2003; PPI did not believe it had been defrauded by Defendants. The evidence also impeaches the testimony of Regina Roth that the decision to close PPI permanently had been made as of the time of the Crossroads reports. Consistent with the Court's ruling on the admission of Exhibit A-45, the exhibit and testimony is not hearsay under F.R.E. 801(d)(2)(D) because they are statements of an agent regarding matters within the scope of its agency during the period of its agency as well as statements made by Mr. Jochum, who was also acting as an agent of PPI. Alternatively, the exhibit is admissible as a business record of Crossroads under F.R.E. 803(6). P. 32, L. 16 -- P. 33, L. 19; P. 33, L. 20 - P. 35, L. 19. These objections are conditioned upon exclusion of Exhibits A -40 and A-44 and should be overruled when those exhibits are

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Case 1:03-cv-00097-WDM-MJW

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admitted. PPI's Objections to Damore Testimony and Related Exhibits P. 12, L. 1-20. PPI asserts a hearsay objection. The evidence is admissible under F.R.E. 801(c) and 802 to show PPI's state of mind, i.e., PPI was not asking Crossroads to examine possible misconduct by Defendants because it did not believe Defendants were responsible for the losses in question. The evidence is admissible for the truth of the matters asserted because, consistent with the Court's ruling on the admissibility of Exhibit A-45, these are statements of PPI's agents regarding the subject matter of their agency during the time period of their agency. F.R.E. 801(d)(2)(D). P. 41, L. 5-9 and P. 41, L. 10-16. PPI asserts objections based on relevance and that the questions purportedly go beyond the witness' area of expertise. Whether PPI's records were competently maintained is highly relevant to Ridgefield's fraud and negligent misrepresentation claims which are based on PPI's representations to Ridgefield in 2002. Objections that a witness lacks expertise or other basis to render an opinion are not appropriate when, as here, that testimony is being admitted as an admission by a party-opponent. Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775, 800 (10th Cir. 2005); F.R.E. 801(d)(2). P. 42, L. 23 - P. 43, L. 17. PPI objects on grounds of hearsay and relevance and objects to admission of Exhibit A-48. The exhibit is relevant because it shows the degree of care that was taken in preparing the Crossroads Report. The document is admissible as a business record of Crossroads pursuant to F.R.E. 803(6) or under the residual hearsay exception, F.R.E. 807, because Crossroads had a great incentive to create an accurate invoice so it could be paid. The document is also admissible under F.R.E. 801(d)(2)(B) as an admission by PPI because by

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Case 1:03-cv-00097-WDM-MJW

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paying the invoice PPI manifested its belief that the statements made therein regarding the work performed by Crossroads were true. P. 48, L. 21 - P. 49, L. 4. PPI objects to this testimony as hearsay. The Morris fax is admissible for the truth of the matters asserted therein but merely to show PPI's state of mind when it rejected any recommendation for followup on the matters addressed in the Crossroads report. PPI did not want the facts about its poor performance to come to light. Further, the testimony and evidence admissible for the truth of the matters asserted because, consistent with the Court's ruling on the admissibility of Exhibit A-45, these are statements of PPI's agents regarding the subject matter of their agency during the time period of their agency. F.R.E. 801(d)(2)(D). P. 54, L. 2-11. PPI objects to this testimony as hearsay. The reference to the Jochum email is here offered only as foundation for the following question regarding whether Mr. Damore had conversations with Mr. Jochum regarding that subject. Regardless, the Jochum e-mail is clearly admissible as an admission by a party opponent and in fact that portion of Exhibit A-42 has been admitted. P. 68, L. 24 - P. 69, L. 5. PPI objects to this testimony as hearsay and objects to the admission of Exhibit A-43. Exhibit A-43 is admissible for the same reasons the Court admitted Exhibit A-45, which is a later version of the same report. P. 72, L. 12 - 18. This objection is conditioned upon exclusion of Exhibit A -40 and should be overruled when that exhibit is admitted. Dated: March 13, 2006.

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Case 1:03-cv-00097-WDM-MJW

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Filed 03/13/2006

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s/Luis A. Toro Luis A. Toro SENN VISCIANO KIRSCHENBAUM P.C. 1801 California Street, #4300 Denver, CO 80202 303-298-1122 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on March 13, 2006, I hand delivered the above and foregoing to the following persons: Marcus L. Squarrell, Esq. David H. Stacy, Esq. Ducker, Montgomery, Aronstein & Bess, P.C. 1560 Broadway, #1400 Denver, Colorado 80202

s/Luis A. Toro Luis A. Toro

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