Petitioner proposed submitting the direct testimony of the following witnesses by declaration: David Bailey, David G. Cumming, Kay Gray, Randy Newman and Thomas C. Pollgreen. (Dkt. No. 329.) Respondent agreed to submission of this testimony by declaration if he were permitted to submit his cross-examinations by declaration. (Dkt. No. 359.) The court allowed respondent to submit the cross-examination declarations. (Id.) He has done so. (Dkt. No. 367.) As permitted by the court, petitioner filed a response. (Dkt. No. 378.)
Petitioner accepts respondent's proffered cross-examination declarations of David Bailey, Randy Newman and Thomas C. Pollgreen. However, he notes that the declarations of Mr. Bailey and Mr. Pollgreen have not been signed and reserves the right to contest their admission should the signed copies differ from those submitted on June 1. The court finds this procedure acceptable and will order respondent to file signed copies.
With respect to Kay Gray, petitioner objects to the submission of her testimony on cross-examination by declaration. Submission of cross-examination by declaration is a novel method. While live cross and re-direct examinations are preferred, the court will accept submission of cross-examination by declaration to the extent both parties agree to it.
With respect to David G. Cumming, petitioner objects to a number of statements in his declaration submitted by respondent. The court is willing to accept Mr. Cumming's cross-examination testimony by declaration if the parties can reach an agreement that resolves petitioner's objections, and also is willing to consider written objections to his declaration testimony.
The parties will be ordered to meet and confer to resolve their differences with respect to both witnesses Gray and Cumming.
Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows:
1. The declarations of David Bailey, Randy Newman and Thomas C. Pollgreen filed by petitioner on April 6, 2010 are admitted as their direct testimony. The May 27, 2010 declaration of Randy Newman filed by respondent on June 1 is admitted as Mr. Newman's testimony on cross-examination. Within fourteen days of the filed date of this order, respondent shall file the signed declarations of Mr. Bailey and Mr. Pollgreen. Within seven days of that filing, petitioner shall inform the court if any differences between those signed declarations and the declarations submitted on June 1 cause him to contest their admission.
2. Within fourteen days of the filed date of this order, the parties shall meet and confer and file a joint statement specifying: (a) whether respondent agrees to the submission of Ms. Gray's direct testimony by the declaration filed by petitioner on April 6; (b) if respondent wishes to cross-examine Ms. Gray, how her deposition testimony will be recorded; (c) respondent's response to the issues raised by petitioner regarding the cross-examination declaration of Mr. Cumming and petitioner's proposed submission of the three reports prepared by Mr. Cumming; and (d) any agreement regarding the submission of Mr. Cumming's direct testimony and cross-examination.
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