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- ilnd;;1:08-cv-00139_de628 RegisterActionDate "2014-11-04" @default.
- ilnd;;1:08-cv-00139_de628 RegisterActionDescriptionText "ORDER: On October 9. 2014, Cannon informed the Court and MacNeil that one of its expert witnesses, Michael Lubov, had been diagnosed with a serious illness and informed the Court that it planned to introduce Mr. Lubovs deposition testimony at trial pursuant to Fed. R. Civ. P. 32(a)(4)(C). (Dkt. No. 620). MacNeil objects on the grounds that Mr. Lubovs prognosis is unclear at this time, suggesting that he is not unavailable within the meaning of the Rule and that in any case his prior testimony should not be admitted because MacNeil did not have the proper motive to cross examine him at his deposition. (Dkt. No. 623). In light of the seriousness of Mr. Lubovs illness, the Court finds that he is unavailable to testify under Rule 32. That Lubov is an expert witness is immaterial. The Federal Rules of Civil Procedure do not differentiate between expert and fact witnesses for the purpose of testimony by deposition. See Fed. R. Civ. P. 32(a)(4) (rule applies to a witness, whether or not a party). MacNeil argues that it did not have a similar motive to cross examine Mr. Lubov at his deposition, seeming to suggest that the evidence should be barred by Fed. R. Evid. 804(b)(1). Having found that Fed. R. Civ. P. 32(a) allows the introduction of the deposition testimony, however, Fed. R. Evid. 804 is inapplicable. See Ueland v. United States, 291 F.3d 993, 996 (7th Cir. 2002). (Evidence authorized by Rule 32(a) cannot be excluded as hearsay, unless it would be inadmissible even if delivered in court.). Thus, MacNeil is free to object to portions of the deposition that would be inadmissible if offered as live testimony, but the use of the deposition remains proper under Fed. R. Civ. P. 32(a)(4)(C). Signed by the Honorable Virginia M. Kendall on 11/4/2014.Mailed notice(tsa, ) (Entered: 11/04/2014)" @default.
- ilnd;;1:08-cv-00139_de628 AdministrativeID "626" @default.