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- azd;;3:16-cv-08060_de190 RegisterActionDate "2019-03-23" @default.
- azd;;3:16-cv-08060_de190 RegisterActionDescriptionText "ORDER denying 134 Motion to Bar Alpert Declaration or Testimony. The motion is based on the assumption that Alpert will testify as an expert witness at trial, and the assertion that he was not properly disclosed under Rule 26. Because Alpert will not testify, and Defendant seeks only to use his declaration in cross-examination of Plaintiff's expert, the Court cannot grant the motion at this time. The Court provides the following observations. (1) Defendant states that the declaration's disclosure is not untimely because it will be used solely for impeachment. See Fed. R. Civ. P. 26(a)(1)(A)(ii). The Court holds a narrow view of the impeachment exception. "A document used 'solely for impeachment' within the meaning of the rule is a document which has value solely for the purpose of impeaching a witness. If the document has independent relevancy to the merits of the case, the document is not 'solely for impeachment' and must be disclosed to opposing counsel." Robert Kubicek Architects & Assocs., Inc. v. Bosley, No. CV-11-02112-PHX-DGC, 2013 WL 998222, at *2 (D. Ariz. Mar. 13, 2013). (2) If this exception to disclosure does not apply, the Court does not agree with Defendant's cases suggesting that disclosure during summary judgment briefing is sufficient. (3) Nor does the Court agree that this is a matter of which the Court can take judicial notice under Rule 201. "[J]udicial notice is not appropriate unless the matter is beyond reasonable controversy." 1 Weinstein's Federal Evidence § 201.10 (2019). The fact that Alpert's statements in the declaration are found in a court's docket somewhere does not make them indisputable. (4) The Court will address Defendant's objections to the declaration at trial or at the final pretrial conference if raised by the parties. Signed by Senior Judge David G Campbell on 3-23-19. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 03/23/2019)" @default.
- azd;;3:16-cv-08060_de190 AdministrativeID "190" @default.
- azd;;3:16-cv-08060_de190 OntologyLabel order @default.
- azd;;3:16-cv-08060_de190 hasReferenceToOtherEntry azd;;3:16-cv-08060_de134 @default.