On May 19, 2010, the undersigned held a status conference. Robert Bacon, Joan Fisher, and Tivon Schardl appeared for petitioner. Paul Bernardino and Heather Gimle appeared for respondent. The parties discussed a number of pre-evidentiary hearing matters.
I. Deposition of Petitioner
The only outstanding issue regarding the deposition of petitioner is the definition of "brain injury." See May 4, 2010 Order at 1. The parties agreed at the status conference that the term "brain injury," as used in the May 4 Order at 2:2 and 2:13, is defined as "instances of head trauma."
II. Method of Taking Testimony
According to the January 22, 2010 scheduling order, the purpose of this status conference was to discuss which witnesses' testimony would be taken by declaration, deposition, or in court during the evidentiary hearing scheduled to begin on August 9, 2010. On April 6, petitioner provided notice of the witnesses whose direct testimony he wishes to proffer by their declarations. Respondent did not notice any witness testimony by declaration. At the status conference, respondent described his position with respect to the witnesses listed in petitioner's April 6 notice, and petitioner provided his response. Below, the court attempts to summarize areas of apparent agreement of the parties, areas of dispute, and areas where questions remain.
A. Witnesses whose Direct Testimony is Submitted by Declaration and will not be Subject to Cross-examination
Respondent agreed to the submission of the following witnesses' direct testimony through their declarations, lodged as appendices to petitioner's April 6, 2010 Proffer of Direct Testimony by Declaration: James Berendt (App. 3), Pamela Johnson (App. 13), Sandra Overstreet (App. 28), Greg Sugden (App. 30), and Frank Tennison (App. 31). In addition, respondent agreed to submit without cross-examination or challenge the Royal Rangers DVD (App. 35) and the two declarations of Juanita Martin (App. 33) and Brett Kee (App. 34) authenticating the DVD.
B. Witnesses whose Direct Testimony may be Submitted by Declaration and for whom Respondent seeks to Submit a Declaration in lieu of Cross-examination
Respondent agreed to submission of the direct testimony by declaration of witnesses David Bailey (App. 2), David G. Cumming (App. 7), Kay Gray (App. 12), Randy Newman (App. 18), and Thomas C. Pollgreen (App. 20), as long as respondent is permitted to submit a second declaration in lieu of cross-examination. Petitioner's counsel stated that he could not agree to this procedure until he has seen the cross-examination declarations. Respondent stated he would require three weeks to complete the declarations and provide them to petitioner's counsel. Petitioner pointed out that the January 22 scheduling order requires all depositions in lieu of in-court evidentiary hearing testimony to be completed by July 30. Delaying a decision on whether or not these witnesses will be deposed will be prejudicial to meeting the July 30 deadline.
There is very little room for delay in the present schedule. Respondent has had the declarations of each of the witnesses in this category for years.*fn1 He has known since November 20, 2009 that petitioner intended to call these witnesses and that he would rely upon these declarations. He has known since January 22, 2010 that the purpose of this May 19 conference was to finalize the method for taking the testimony of each witness. Respondent has had almost six months to interview those witnesses and obtain new declarations. If respondent wishes to submit declarations in lieu of cross-examination, he shall do so within ten days of the filed date of this order.
C. Witnesses Whose Direct Testimony Petitioner proposes to Submit by Declaration but Respondent has been Unable to Contact
Respondent has been unable to contact the following witnesses: Peggy Ajax (App. 1), Candy Cobb (App. 5), Lori Barnhart Dutton (App. 9), and Neva S. Latham (App. 15). Petitioner's counsel was ordered to provide any phone numbers they may have for these witnesses ...