CASE NO. A11-2119

STATE OF MINNESOTA

IN SUPREME COURT

*********

Custom Conveyor Corporation, a Minnesota Corporation,

Appellant,

v.

TC/American Monorail, Inc. a Minnesota Corporation,

Respondent,

************* RESPONDENT'S FORMAL BRIEF

*************

SHOEMAKER & SHOEMAKER, PLLC PAUL F. SHOEMAKER {#0178226) 7900 INTERNATIONAL DRIVE SUITE 200

HENNINGSON & SNOXELL, LTD BY: MARK V. STEFFENSON {#0178457) 6900 WEDGWOOD ROAD, SUITE 200 MAPLE GROVE, MN 55311

BLOOMINGTON, MN 55425 (952) 224-4600

HOVERSON LAW OFFICES, P .A. MICHAEL K. HOVERSON {#0175948) 333 WASHINGTON AVE NORTH SUITE 308 MINNEAPOLIS, MN 55402 {612) 349-2728

ATTORNEYS FOR RESPONDENT

{763) 560-5700

ATTORNEYS FOR APPELLANT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF FACTS

ARGUMENT

I.

II.

Standard of Review

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT'S REQEUST TO TAKE THE DEPOSITIONS OF J B AND M I

A.

B.

c.

D.

E.

The Rules of Civil Procedure Make No Distinction Between Discovery Depositions and Depositions to Preserve Trial Testimony

Rule 29 Provides the Procedural Framework to Guide Custom and Practice

The Trial Court's Permission to Take the Video Deposition of Kenneth Eickelberg During the Course of Trial Does Not Contradict its Prior Order

Minnesota Rule of Civil Procedure 27 Provides the Exclusive Means by Which a Proponent May Preserve Testimony in Civil Proceedings

Appellant Failed to Show Any Relevance in the Testimony of B or I to the Instant Contractual Dispute

Conclusion

-1-

-ii-

1

14

14

14

17

27

28

31

33

38

TABLE OF AUTHORITIES

Constitution and Statutes and Rules

Minn. R. Civ. Proc. 1 {2013) Minn. R. Civ. Proc. 27 {2013) Minn. R. Civ. Proc. 29 (2013)

Minn. R. Civ. Proc. 30 {2013) Minn. R. Civ. Proc. 32.01 {2013)

Minn. R. Civ. Proc. 32 {2013)

Minn. Gen. R. Prac. 111 {2013} Minn. Gen. R. Prac. 111.04 {2013)

Minn. R. Evid. 402 {2013)

Cases

19 31,32 16, 19, 27,28 19 19, 20, 29, 31, 32 19

30 25

33

Allen LILLEBO and Patricia Lil/ebo/ Plaintiffs/ v. ZIMMER/ INC./ Defendant., 21 2004 WL 3371107 {D. Minn. 2011)

Charles v. F. W. Wade, et. a// 665 F.2d 661 {5th Cir. 1982}

Cotroneo v. Pitney, 343 N.W.2d 645 {1984)

Henkel v. XIM Products, Inc., 133 F.R.D. 556 {D. Minn. 1991)

22,23

14

21, 22, 30

Insignia Systems/ Inc. v. News America Marketing In-Store, Inc., 2011 WL 21, 22 282632 {Slip Copy) {2011)

Integra Lifesciences 1/ Ltd. vs. Merck KGAA, 190 F.R.D. 556 {S.D. Cal1999)

Johnson v. Fehsefeldt, 106 Minn. 202, 118 N.W. 797 {1908)

23, 24, 25

Kellar v. VonHoltum, 568 N.W.2d 186 {Minn. App. 1997), review denied 14

-II-

r I I

I

I

I I

(Minn. Oct. 31, 1997)

Keller v. Orion Ins. Co., Ltd. of London England, 285 F. Supp. 906 (D. Minn. 20, 21 1968)

Larson v. Anderson, Taunton & Walsh, Inc., 379 N.W.2d 615 (Minn. Ct. App. 20 1985}

Lindberg v. Luther, A10-1911 (Minn. App. Sept. 6, 2011)(unpublished 17, 20 decision)

Peterson v. BASF Corp., 711 N.W.2d 470 (Minn.2006) 14

Sandmann v. Petron, 404 N.W.2d 800 (Minn. 1987) 32

Spangler v. Sears, Roebuck and Co., 138 F.R.D. 122 (S.D. Ind. 1991) 24

State v. Kraushaar, 470 N.W.2d 509 (Minn. 1991); 33

State v. Rud, 359 N.W.2d 573 (Minn. 1984) 33

Uselman v. Uselman, 464 N.W.2d 130 (Minn.1990) 14

Other Legal Authorities

Louise II, Discovery and Pre-Trial Under the Minnesota Rules, 36 Minn. L. Rev. 32 633 (1952)

-iii-

STATEMENT OF FACTS

This appeal follows a decision affirming the trial court's orders in all

regards, including the trial court's refusal to permit the Appellant's request to

take 11trial" depositions of two witnesses located in Las Vegas, Nevada, following

the close of discovery. A94. Following almost nine days of trial, the Jury returned

a verdict in favor of Respondent against Appellant for separate claims of breach

of contract and goods sold and delivered. Judgment was entered in favor of

Respondent in the amount of $205,553. The Jury found Appellant breached its

contract with Respondent and that Respondent was entitled to damages in the

amount of $172,561.00 for the CNLV (i.e, City of North Las Vegas, hereinafter

11CNLV") contract, subject to an offset in the amount of $43,000.00. The Jury also

found Appellant breached its contract with Respondent on two other undisputed

contracts (MHC and WPM), and awarded Respondent damages in the amounts of

$8,440 and $67,552, respectively, for a combined award of $205,553. The Jury

found in favor of Appellant for unpaid monies owed for goods sold and delivered

in the amount of $205,553.

Respondent presented direct evidence in its case in chief by testimony

elicited from nine witnesses: Paul Lague (Respondent's President) Transcript 100-

104 (hereafter 11T"); William Swanson (Respondent's General Manager) T. 195-

213; L N (Respondent's sales employee) T. 105-116; Loren Loso

1

(Respondent's Project Manager) T. 116- 195; 1287-1291; S K

(Respondent's Welder/Sandblasting/Painting employee) T. 331-377; R

V (Respondent's Credit and Collections employee) T. 377-380; 406-427; John

Eickhoff (expert witness - Certified Welding Inspector (CWI) Respondent's

employee) T. 428-506; 555-563; 992-1001; J E (owner, Wright County

Sandblasting Inc.) T. 215-239; and Steven Bengtson (expert witness- CWI hired

by CH2MHill) T. 245-323; 512-554.

Appellant presented its defenses and claims by testimony elicited from

three (3) fact witnesses and one (1) expert witness: Dave Casperson, Appellant's

President (T. 1121-1191); Thomas Eull, Appellant's Senior Engineering Manager

(T. 570-713; 745-814; 902-990); Kenneth Eickelberg, Engineer with the City of

North Las Vegas (by video deposition); and T W , an employee of Braun

lntertec T. 826-900}.

Background Facts To CNLV Contract

The following comprises a summary of the background facts to the CNLV

contract which formed the only contractual dispute between the parties and

evidence which supports the Jury's verdict. The undisputed evidence showed

Appellant solicited Respondent to fabricate an apparatus that included four (4}

steel hoppers and four (4) related structural support stands. Prior to soliciting the

bid, Appellant provided Respondent with a single set of preliminary plan

2

drawings of the apparatus only. T. 119-20. Based upon those preliminary

drawings, Respondent's project manager Loso prepared and sent a bid proposal

to Appellant's employee M . See Ex. 3; T. 123-27. Appellant did not call

M to testify at trial.

Respondent offered to fabricate components of the apparatus for a total

price of $305,000.00, to include fabrication of four (4) identical tank isometric

solids handling assemblies (as hoppers and lower stands); material and labor for

fabricating; sandblasting to be done to SP-6 standard; painting with 2 mils

enamel on outside frame and epoxy on inside of tanks; and, partial assembly, if

required for shipping. See Ex. 3.

Loso testified the welding on the apparatus was subject to AWS 01.1- as

this Welding Code was referenced in the side notes on the plan drawings. T. 121-

22; 444-45. Loso testified the sole reference information he worked from when

he submitted his bid proposal to Appellant was the set of preliminary prints he

received from Appellant. T. 127-28.

Loso further testified his bid proposal did not include certain components

shown in the prints; namely, the top assembly, conveyers, trucking and auger

assembly, and the evidence presented showed Appellant acknowledged these

omitted components and items when Appellant confirmed the contract bid price

and details of the order in its Purchase Orders. T.125-27; Ex. 6. Eull made a

3

follow up inquiry with Loso in early June 2009 that asked Loso to confirm his

quote made on April 29, 2009. T. 573; Ex. 4. Exhibit 4 showed Loso reviewed and

confirmed his earlier quote. No additional contract specifications were added

prior to the issuance by Appellant of four Purchase Orders sent to Respondent on

June 24, 2009. There was no evidence presented that any supplemental materials

were ever provided to Respondent during its fabrication to further refine the

weldments made on the entire apparatus. Exhibit 5, authored by Eull, confirmed

only the Loso omitted items - to //clarify" the scope of the Loso RFQ. Ex. 5.

{emphasis added}. Eull's first involvement on the CNLV project started in 11mid to

late April, early May of 2009." T. 581.

On June 24, 2009, Appellant transmitted four {4} separate but almost

identical Purchase Orders {11P0s"} - separate orders were prepared for each of

the four {4} hopper/stand assemblies - denominated as /{North 1 and 2" and

11South 1 and 2." Ex. 6, 253-256. The POs constitute the written acceptance by

Appellant of the bid offer made by Respondent. The POs were authored by Eull

with assistance from its purchasing agent - and after he consulted with

Appellant's President David Casperson on the Order. T 622; 764; 766; 1127. Each

PO contains the following statement related to the orders placed by Appellant: A

quantity of 1 Hopper with the designation of which Hopper was ordered -e.g.,

Hopper South 1- The words appearing under /{Description" are 11Complete

4

fabrication." Additionally, in the description area the following detail is stated:

And surface preparation of the CNLV Hopper Weldments. Custom Conveyor to

Supply Detail Drawings per DWG Series 319608. TC American to Pre-Fit

Legs/Hopper Structure prior to shipping ~~knocked-down" weldments. The POs

contained the following notes:

"Notes: Items not included in TC American scope are per Loren Loso

memo of 4/29/2009." The orders specified the following additional terms:

11Freight FOB Waite Park, MN 3rd party billing."

Ex. 6; T. 253-256.

Following receipt of the POs in late June 2009, Loso was advised by

I

t Appellant to hold off on ordering any steel for the apparatus and told not to

I begin any fabrication because of the 11fluid and ever changing" nature of the

design being requested by Appellant to satisfy its customer. T. 140-42. The I

design issues involved the manner in which a hopper would ultimately be i connected to its structural stand- and it involved possible field welding versus a I

I

I

I I I I

11bolt-up" design. T. 627-28; 808. The final design of the structural stands and

hopper connection was not rendered until around August 3, 2009. On August 18,

2009, Appellant advised Respondent of a material change in the Purchase Order.

Ex. 15. An addendum Purchase Order was issued on August 21, 2009. Ex. 16.

Exhibits 15 and 16 confirm Appellant modified the design of the apparatus

f

I 5

to have the four (4) hoppers "bolt up" to the stands in the field, rather than be

connected by field welding. T. 808. Exhibit 16 confirms this Purchase Order added

additional charges of $25,520.00 for the material and labor to bolt up the four (4)

stands. There was no evidence presented at trial to a contract term described as

"match marking" in any purchase order.

In June 2009, the person responsible for the design drawing changes at

Appellant shifted to a newly hired design engineer S . T. 783. S

was hired by Appellant in June 2009 and took over the drawing and design details

of the apparatus from design engineer D in July 2009. T. 783.

Appellant did not call either D or S at trial.

CWI Steven T. Bengtson testified he was hired by CH2MHill to perform

independent inspections in the role of "verification inspector" at the

Respondent's facility. T. 246. Bengtson testified he has been a CWI since 1989

and was engaged to perform on-site inspections of the fabrication and

coating/priming work performed by Respondent. T. 246; 256; 302. He testified

that his assignment was to perform visual inspection of all weldments and to

perform visual inspection of the surface preparation/sandblasting performed and

the priming made to the apparatus at Respondent's production facility. T. 247. He

testified to his repeated visits and the five (5) reports he prepared admitted as

Exhibits 32 through 36. T. 248. He did not share his written reports directly with

6

Respondent. T. 248. In each instance he reported that the weld areas he marked

for repair were repaired to meet the 01.1 standard for visual inspection. See,

e.g., T. 247; 293; 304; 549.

CWI Eickhoff testified about his CWI credentials and his visual inspections

made of the apparatus and the applicable "acceptance criteria" for welds made

on the apparatus under the Code. T. 431. The provisions in Exhibit 47 clearly

provide that AWS 01.1 Code Section 6.9 is a mandatory provision whenever AWS

01.1 is specified in a contract. T. 438; 442. Ex. 47. Appellant's plan drawing makes

a specific (and the only express) reference to the application of AWS 01.1 -- In

tact, the Appellant's plan drawings stated exactly as follows: "All Welding will be

accordance (sic) with 'AWS 01.1' Stainless steel hoppers and chutes will be

welded continuous exterior only with stiffeners and appurtenances stitch welded

to suit the intended purpose." Ex. 13 (admitted at T. 444). There was no other

evidence introduced to support the application of any other reference to AWS

01.1- or to any other form of non-destructive testing {NOT) as the "acceptance

criteria" to the parties' contract. T. 445.

The undisputed evidence presented at trial confirmed that all

Respondent's welds were performed by AWS certified welders, as verified by CWI

Eickhoff. T. 333; 344; 464. The welds and all welder qualifications were inspected

by CWI Bengtson (and Eickhoff). T. 312; 465-66; 523; 646. The contract terms for

7

weldments between Respondent and Appellant make absolutely no reference to

any "acceptance criteria" for the goods other than by "visual inspection." T. 449.

There was no reference to any other form of NOT, including testing that could

have been added by Appellant to include ultrasonic (UT), particle testing,

magnetic testing, or radiographic {x-ray) testing. T. 449.

Appellant did not call any "expert" witness to provide opinion testimony

concerning any weldments made to the subject apparatus. In fact, Appellant did

not identify any "expert" witness on weldment issues in its Answers to

Respondent's Interrogatories, nor in its slate of witnesses in the Joint Statement

of the Case. See.J e.g., A22-23.

Appellant presented video deposition testimony of City of North Las Vegas

employee Kenneth Eickelberg. Eickelberg testified he was a senior engineer for

the City's utilities department. His video deposition testimony was procured on

Friday, June 24, 2011, when a medical emergency arose with Appellant's counsel

during the morning of the third day of trial {Wednesday, June 22, 2011), which

precluded his live testimony at trial. The medical emergency necessitated a break

of two and one half days in the trial. Trial resumed on Monday, June 27, 2011. T.

394.

The evidence presented to the Jury included many references to a

confusing and lengthy list of acronyms used to identify different entities who

8

were involved in the construction of a waste water treatment facility developed

by the City of North Las Vegas, including CNLV - the City of North Las Vegas;

CNLV Constructors II- a joint venture including several entities {including CNLV)

{"CNLV II"); and CH2M Hill. However, other than the names of these entities, very

little information was presented by Appellant to the Jury on the distinct roles

played by these various parties in such a manner as would fully explain the

interrelationships at work in Nevada- nor was evidence presented to the Jury on

the individual{s) or various entities who Appellant answered to on the conformity

of the apparatus it supplied to meet its separate contract specifications.

Appellant failed to offer into evidence its own contract with CNLV 11/CNLV

and it failed to offer into evidence the substantial list of project specifications and

detailed weldment specifications it agreed to in its bid proposal with CNLV II.

Appellant did not call any witness affiliated with or employed by CH2M Hill or

CNLV II. Appellant's contract with the entities in Nevada was under its exclusive

control and yet Appellant made no proffer of that contract and its separate

specifications at trial.

Facts Related to Instant Presented

Appellant filed a motion on April 29, 2011 seeking letters rogatory from

the District Court to "preserve trial testimony" for unavailable, out of state

witnesses J B and M I by deposition. {A26-32). The Court's

9

Scheduling Order dated September 3, 2010 set various dates to govern the

proceeding and to aid in its management of the complex dispute. (A1-2). The

Scheduling Order provided, inter alia/ that 1) all discovery was to be completed

by January 21, 2011; 2) the deadline for bringing non-dispositive motions was

February 18, 2011; and, 3) the deadline for bringing dispositive motions was

March 18, 2011. Appellant filed its motion for permission to take the Nevada

depositions of B and I after all the deadlines had passed. Appellant

failed to seek an extension of both the discovery and motion deadline periods by

formal motion. A84.

Appellant's motion sought to take the depositions of these two {2) Nevada

residents in Las Vegas, Nevada during the week of June 6, 2011, just ten {10) to

fourteen (14} days prior to the date set for commencement of trial. (A27, 30}. As

to proposed deponent M I Appellant's written request stated, "[i]t is

the belief and position of Custom that the testimony of Mr. I regarding his

observations and testing of the product at issue is not only necessary for the

intended and anticipated defense(s} against the allegations to be raised by the

Plaintift but will additionally be necessary for purposes of Custom's case in

chief." (A27}. (Emphasis added). In Appellant's Answers to Interrogatories,

Appellant identified I as a possible fact witness with "Las Vegas Material

Testing" with information related to "Product non-conformance." (A4-5). In its

10

Joint Statement of the Case, Appellant included I on its proposed witness list

as a fact witness with "Aztech Inspection Services." (A22}. Appellant failed to

identify I as an expert qualified to perform UT weldment testing and

proffered no information to the district court concerning his education, work

experience, or credentials qualifying him to perform UT testing. Appellant failed

to identify any "report" prepared by I in its written submissions to the Court.

As to proposed deponent J B the Appellant's written request

stated, "Mr. B is the program director for the City of North Las Vegas Water

Reclamation Project. Mr. B has the ultimate authority and control over all

aspects of the construction project, including but not limited to, labor,

scheduling, selection of contractors and subs, project scope, oversight of all work

flows and acceptance of all materials and work performed by contractors and

subs from groundbreaking to plan startup and final operation." A30. In

Appellant's Answers to Interrogatories, Appellant listed B as a possible fact

witness with "CH2M" and that B "[w]ould be knowledgeable with respect to

product non-conformance and corrective action efforts." AS.

The Appellant's request erroneously stated that a B "report was

provided to the Plaintiff in the course of discovery in this matter." A30. No

"report" by B was ever provided in discovery, offered at trial or submitted

with the request. Appellant stated B information would be "material" to

11

the litigation. A311·

However, in addition to B Appellant identified three (3) other fact

witnesses affiliated with or employed by CH2M Hill Contractors, including C

E , T C , and J M in its Joint Statement of the Case. A22.

Appellant failed to call any one of these individuals to testify at trial. Appellant

identified numerous other fact witnesses who resided in Las Vegas, Nevada in its

answers to discovery and in the Joint Statement of the Case, but Appellant did

not call at trial any other witness who resided in Las Vegas, Nevada, other than

Kenneth Eickelberg. A22-23.

Appellant's motion to depose B and I failed to include any

written legal authority to the Court in support of its request. Appellant also failed

to support its request to the Court with any formal (sworn) or informal written

statements propounded by either I or B of the intended trial testimony

it sought to preserve. In Appellant's Answers to Interrogatories numbers 4 and

12, Appellant stated it had no statements from any of the named individuals and

Appellant produced no statements in its discovery responses. A6-7; A9-10.

In his colloquy at the hearing held on May 16, 2011 to consider Appellant's

lin its Statement of Facts and Argument, Appellant injects facts not found in the trial court record in its Brief as to the nature of the expected testimony from B and I (p.S), and as to the manner in which Appellant had confirmed that both witnesses would be able to testify at trial (p.16). No such facts are supported in the record.

12

requests, Appellant's counsel advised the Court that he learned in late March

that neither I nor B would "be available or would voluntarily come here

from the State of Nevada to testify." A49; A74-75. There is no record of what

arrangements had been made or what assurances were previously made by

either witness to Appellant's counsel of their agreement to attend trial or a

reason for a change in their position.

Appellant made no showing to the District Court whatsoever of the unique

knowledge of or critical need for the testimony of either B or I to

support its defenses or claims, nor did it make any showing of relevance of the

expected and "known" 11trial testimony" of either witness to any material issue in

dispute in the Minnesota contract. Appellant made no showing at the hearing or

at trial to relate the expected or 11known" evidence that Appellant would have

secured from I or B in a 11trial" deposition nor how such evidence would

support any defense or claim it presented. At hearing, substantial argument was

presented by Respondent that I only known involvement was limited to UT

testing he performed on welds to assist the City of North Las Vegas on whether

or not the apparatus tendered by Appellant to the City met a higher acceptance

standard (random UT testing) than the acceptance criteria applicable to the

parties' contract (visual inspectionL as dictated by the provisions of AWS 01.1

Clause 6.

13

The district court denied Appellant's motion on May 24, 2011. A84-86. The

district court made four specific findings in its Order denying the Appellant's

request. A85. The district court concluded, inter alia, that no distinction is made

between discovery and trial depositions under the Rules and, importantly, that

Appellant had "failed to demonstrate the necessity of such testimony to its case."

A85.

ARGUMENT

I. STANDARD OF REVIEW

A district court's discovery orders are reviewed under an abuse of

discretion standard. Kellar v. VonHoltum, 568 N.W.2d 186, 190 {Minn. App.

1997), review denied {Minn. Oct. 31, 1997). A district court has broad discretion

in ruling on evidentiary matters. See Peterson v. BASF Corp.I 711 N.W.2d 470,

482-83 {Minn.2006}; See also Uselman v. Uselman, 464 N.W.2d 130, 138 {Minn.

1990){A trial court has broad discretion in admitting or excluding evidence;

entitlement to a new trial rests upon the complaining party's ability to

demonstrate prejudicial error). Finally, the record is to be viewed in the light

most favorable to sustain an order that involves the exercise of discretionary

authority by a trial court. See Cotroneo v. Pilney, 343 N.W.2d 645, 648 {1984).

II. THE TRIAl COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPEllANT'S REQEUST TO TAKE THE DEPOSITIONS OF J B AND M I

14

Appellant contends the district court abused its discretion and committed

prejudicial error in refusing Appellant's late request to "preserve trial testimony"

for unavailable, out of state witnesses J B and M I by deposition

to be convened shortly before the commencement of trial. Appellant argues the

error can only be rectified by granting a new trial and that it was materially

prejudiced by the trial court's decision. The contention lacks legal merit and is

unsupported by the record.

The district court's ruling to deny the motion was within the district court's

broad discretion to govern discovery, evidence, and trial management issues and

was entirely consistent with the Minnesota Rules of Civil Procedure and Rules of

Evidence. As such, no error was made in denying the Appellant's request to

If preserve" trial testimony of these two witnesses by deposition and no new trial

is warranted. The Appellant has failed to demonstrate any prejudice to its claims

or defenses made at trial. The Court of Appeals agreed that the district court did

not abuse its discretion in refusing to grant the Appellant's request. A105.

The Appellant's motion was filed on April 29, 2011 and heard on May 26,

2011, less than four (4) weeks prior to the date set for trial. The Court's

Scheduling Order dated September 3, 2010, set various dates to govern the

proceeding and to aid in its management of the complex dispute. The Scheduling

Order provided that all discovery was to be completed by January 21, 2011.

15

Appellant failed to seek an extension of the discovery period by formal motion.

No stipulation under Minnesota Rule of Civil Procedure Rule 29 granted the

parties any other rights to pursue depositions for a limited purpose of

"preserving trial testimony."

Both parties engaged in formal discovery which included the production of

nearly 12,000 pages of written materials related to the terms and performance of

the contract at issue between the parties and the separate contract existing

between Defendant and CNLV Constructors II joint venture consortium}. A34.

Respondent supplemented its prior Answers to Interrogatories, served

Interrogatories and Requests for Admission (and explanatory interrogatories}

upon Appellant and Respondent took four {4} oral depositions of key fact

witnesses and one {1} expert witness {CWI Steven Bengtson}. A34-5. Appellant

elected to take the oral depositions of only two (2} of Respondent's employees,

despite naming twelve (12} witnesses from out-of-state in its Joint Statement of

the Case (nine {9} of which were identified as residing in Nevada}. See A22-23.

Appellant did not identify M I or J B as {/experts" in the joint

statement of the case nor in its answers to Interrogatories. Rather than stating

the knowledge with specificity as requested in Interrogatory Number 3, Appellant

gave only a general description of the nature of the knowledge held by B

and I See AS-6.

16

Appellant failed to submit any written memorandum citing any legal

authority to the Court in support of its request. Appellant failed to support its

request to the Court with any formal (sworn) or informal statement propounded

by either witness of the intended trial testimony sought to be preserved.

Appellant made no showing on the unique nature of or critical need for the

testimony of either witness to support its defenses or claims. Appellant made no

showing of relevance of the expected and "known" "trial testimony" of either

witness to any issue in dispute under the Minnesota contract between the

parties.

A. The Rules of Civil Procedure Make No Distinction Between Discovery Depositions and Depositions to Preserve Trial Testimony.

Appellant contends that Minnesota and Federal cases recognize a

distinction between "trial" depositions and "discovery" depositions. Appellant

fails to cite any published legal authority inside or outside of Minnesota where a

state court has recognized such a distinction. Appellant initially points to

pronouncements made in the unpublished opinion issued in Lindberg v. Luther as

tangential support for a party's right to take a deposition of an unavailable

witness just three weeks before trial. See Appellant's Brief 10. Lindberg v. Luther,

A10-1911 (Minn. App. Sept. 6, 2011) (unpublished). A120. Lindberg does not

support such an interpretation. Fairly read, the Lindberg Court's statement

17

concerning the use of depositions at trial related to the option of presenting

evidence by deposition, rather than by live testimony. In short, in construing the

Rules of Civil Procedure, the Court merely recognized that Lindberg had a means

of presenting the testimony of two facts witnesses who indicated they would not

be available to testify at trial.

The district court had found that Lindberg could have brought the

witnesses to trial by subpoena. /d. The Court of Appeals added that Lindberg

could have submitted their testimony by deposition. Nb mention is made in the

opinion of any governing scheduling order nor are the reported facts sufficient to

determine whether or not either of the reluctant witnesses was even

"unavailable" such that their testimony could be submitted under Rule 32.

Respondent submits that the Lindberg holding is limited to the facts

before that Court and related exclusively to its review of the trial court's refusal

to grant Lindberg a continuance of the trial. The limited statements made in

Lindberg about use of depositions at trial serve only to illuminate every party's

right to offer evidence at trial by deposition (if they are "unavailable"}, along with

their right to compel reluctant witnesses to appear by subpoena. Given its non-

precedential value, no further weight should be given to the Lindberg decision.

In Appellant's written requests to the district court for permission to take

out of state depositions in this matter, Appellant referred to Rules 26, 30 and 45

18

of the Civil Rules of Procedure as the procedural and legal basis for its request.

A27; A31. These rules govern the scope, use and methods of discovery in civil

actions. However, rules 26 and 30 make no exception in their language to

distinguish oral depositions used strictly to 11preserve trial testimony" from

depositions taken for /{discovery" purposes. As held by the Court of Appeals in its

decision below, Minnesota cases do not distinguish between depositions based

on the purpose sought to be achieved. See A105. No such distinction is warranted

as the Minnesota Rules of Civil Procedure already provide sufficient procedural

latitude under Rule 29 to permit practitioners to agree on the taking and use of

discovery and 11preservation of trial testimony" depositions. See Minn. R. Civ.

Proc. 29.

Under the Rules of Civil Procedure, Rule 30 does not distinguish between

depositions based on the deposing party's stated purpose - whether it is

intended for discovery purposes or for preserving trial testimony. Minn. R. Civ.

Proc. 30.2 Rule 32.01 specifies the manner in which an oral deposition can be

used at trial. Rule 32 does not distinguish a discovery deposition from a

deposition taken merely to preserve trial testimony and there is no Minnesota

2 Respondent respectfully submits that any distinction between "trial" and "discovery" depositions should only be recognized by rule amendment to Rule 30, if warranted, under this Court's promulgation of the Rules of Civil Procedure with input and comment from the bench and bar so that the diverse needs of all parties are advanced and the stated goals of securing a "just, speedy, and inexpensive determination of every action" is met. See Minn. R Civ. Proc. 1.

19

state case law that has made such a distinction. The Court of Appeals concluded

that no distinction has been recognized in prior case law. A105. The Court of

Appeals found support for this position in its earlier decision that rejected such a

distinction in the context of evidentiary rulings. A102. See Larson v. Anderson_

Taunton & Walsh, Inc., 379 N.W.2d 615, 618-19 (Minn. Ct. App. 1985)(court failed

to draw any distinction between "discovery" deposition and a deposition

conducted when the "witness is unavailable for trial," i.e., to preserve trial

testimony).

Under Rule 32.01 of the Minnesota Civil Rules of Procedure, a party may

present the deposition testimony of any witness who is "unavailable." While the

Court's opinion in Lindberg, infra, does not expressly cite to Rule 32.01 as support

for this option, it fails to cite to any other legal authority that would support the

Appellant's contention that its statement on depositions were meant to strike

new legal precedent granting any party a right to take a deposition to "preserve

trial testimony" without regard to a governing scheduling order.

Various Minnesota District Court (Federal) actions have reached the

conclusion that no distinction exists in their interpretation of the parallel Federal

rules of civil procedure governing discovery in civil actions. In Keller v. Orion

Ins. Co., Ltd., the Minnesota District Court concluded that there is no reason

under the plain language of Rule 26 that discovery depositions should be treated

20

differently from depositions to preserve trial testimony. Keller v. Orion Ins. Co.,

Ltd. of London, England, 285 F. Supp. 906, 906-07 (D. Minn. 1968). This

interpretation was followed in Allen LILLEBO and Patricia Lil/ebo, Plaintiffs, v.

ZIMMER, INC., Defendant., 2004 \/IJL 3371107 (D. Minn. 2011). Further, in Insignia

Systems, Inc. v. News America Marketing In-Store, Inc., 2011 WL 282632 (Slip

Copy) (2011), the Minnesota District Court denied a request to take three (3)

depositions to preserve trial testimony on the eve of trial. The request was made

on the basis that the three (3) witnesses would be unavailable for trial and that

without their deposition testimony, their testimony would be impossible to

procure. /d. at 1. The Court relied in part on the decision made in Henkel,

discussed below, to deny the requested relief.

In Henkel v. XIM Products, Inc., 133 F.R.D. 556, 557 (D. Minn. 1991), the

District Court considered the following question: "The question before the court

is whether, absent agreement of the parties, the pretrial schedule governs the

time for taking depositions where the purpose of the deposition is to preserve

testimony for trial, and not to discover new facts. [Defendant] XIM contends that

because the purpose of this ... deposition is to preserve his testimony for trial, it

is not governed by the discovery termination date set forth in the pretrial

schedule. For the reasons set forth below the plaintiffs' motion [for protective

order] will be granted." (Emphasis added) The Henkel Court concluded as follows:

21

The court concludes that absent an agreement of the parties, or some compelling circumstance that would cause a miscarriage of justice if a late deposition is not allowed, all depositions must be completed is governed by the discovery termination date of the pretrial schedule. As the second deposition of Mr. Klostermeyer was beyond the time permitted for discovery by the pretrial schedule in this case, and as defendants have made no showing of any compelling circumstance that would warrant the retaking of Klostermeyer's deposition, the plaintiffs have shown the requisite good cause for the granting of a protective order. The court will order that the deposition of Mr. Klostermeyer not be had.

!d. at 558 (emphasis added).

The Court in Insignia Systems construed the holding in Henkel to provide

that: 11the reasoning of the decision [in Henkel] was that because defendants had

an opportunity to depose the witness, and chose not to do so, they could not go

outside the pretrial schedule and depose him at a 11trial deposition" shortly

before trial." Insignia, Insignia, 2011 WL 282632 {Slip Copy) {2011),at 2.

Appellant's reliance on the holding in Charles v. F. W. Wade, et. a/, 665

F.2d 661 (5th Cir. 1982) is misplaced as the decision does not hold precedential

value in Minnesota. From the reported facts in Charles, Charles suffered manifest

and substantial prejudice by the trial court's decision blocking his request to

present the deposition testimony of Nixon at his trial. Unlike the present case,

the Charles court confirmed that 11appellant knew what Nixon had to say." !d. at

664. This 11knowledge" of Nixon's testimony was based on two separate

interviews made of Nixon by Charles' counsel. The expected and known

testimony was outlined in detail by submissions made to the court. /d. at 663.

22

The expected and known testimony of Nixon that Charles sought to preserve

went to the heart of the claim made by Charles against Detective Wade that

Wade had engaged in illegal conduct when he procured Nixon's prior false

testimony at the trial to convict Charles. The Court held that the trial court had

abused its discretion in not allowing Charles to depose Florida inmate Nixon in

order to present his testimony at Charles' trial. /d. at 667.

In the instant proceeding, Appellant made no such showing to the trial

court of the "known" testimony it sought to procure from B or I The

contention that B and I were witnesses to the "nonconformity" of

Respondent's product is not supported in the record. Without support in the

record, Appellant now injects facts that find no support in the written or oral I

The most cogent and well-reasoned opinion on the issue under I I !

record made at the hearing.

consideration is found in the analysis advanced in the opinion issued in Integra

Lifesciences IJ Ltd. vs. Merck KGAA. See Integra Lifesciences IJ Ltd. vs. Merck KGAA,

190 F.R.D. {S.D. Cal 1999). In Integra, the Court recognized that "the Federal

Rules of Civil Procedure do not distinguish between depositions taken for

discovery purposes and those taken strictly to perpetuate testimony for

presentation at trial." /d. at 558 (citations omitted). It then reviewed the

provisions of Federal Rule of Civil Procedure Rule 32 and determined no

23

distinction was made in this Rule which governs the admissibility of depositions

as evidence at trial. /d.

The Integra court refused to follow the result and reasoning advanced in

Charles vs. Wade on the ground that the opinion "failed to cite or refer to any

authority whatsoever for the distinction it makes between discovery and trial

depositions." /d. The Integra Court also rejected the decision reached and

analysis advanced in Spangler v. Sears, Roebuck and Co. /d. Spangler v. Sears,

Roebuck and Co., 138 F.R.D. 122 {S.D. Ind. 1991). The Integra Court found the

analysis in Spangler did not "establish any suitable parameters regarding the

propriety of taking a deposition after the expiration of discovery, solely for

purposes of presentation of that testimony at trial." !d. The Court stated, "The

Court in Spangler made no attempt to distinguish between circumstances where

use of a 'trial deposition' may be appropriate, and circumstances where it is a

clear end-run around the discovery deadline under [Federal] Rule 16." /d. at 559.

The Integra Court also pointed to the lack of control by the court and

parties if a distinction is recognized in depositions taken under Rule 30. It stated,

"[d]fendants fail to address how the court or parties should distinguish between

'trial' depositions which must be completed within the discovery period and

those which have no time limits." !d. In this light, the Integra Court pointed to a

very real threat that will result from such a distinction. It stated, "[n]othing would

24

keep the parties from waiting until after the close of discovery to take all 'trial'

depositions. This would effectively eliminate any need to conduct discovery of

'unavailable' witnesses during the discovery period." /d.

The Integra Court followed the analysis advanced in Henkel and stated as

follows: "Where a party makes a tactical decision during discovery to refrain from

deposing a non-party witness who is beyond the subpoena power of the court,

but who has relevant information to offer in the case, that party takes the risk

that the testimony will not be presented at trial if the witness does not

voluntarily appear." /d. The Integra court acknowledged that where good cause

exists, or exceptional or compelling circumstances are shown, a denial to permit

a deposition after the close of discovery may result in a "miscarriage of justice."

!d. This relief is in essence the discretion offered to our state district courts

under Rule 111.04 of the Minnesota General Rules of Practice which provides for

amendment of the scheduling order for good cause shown. See Minn. Gen. R.

Prac. 111.04 {provides for amendment of scheduling order upon showing of

"good cause"}. 3

3 The Comment to General Rule of Practice 111 makes specific reference to permitting independent medical examinations and a related discovery tool in the form of requests for admissions governed by Minnesota Rule of Civil Procedure 36 to be used after the conclusion of discovery because "requests for admission serve an important purpose of narrowing the issues for trial and resolving evidentiary issues relating to trial." The Comment does not reference any distinction in depositions taken solely to preserve trial testimony.

25

Appellant contends the Court of Appeals' decision destroys a party's ability

to take a "trial" deposition to preserve and present the testimony at trial. This

conclusion is not evident from the decision. The published opinion does not in

any manner alter or affect a party's ability to take a Rule 30 deposition- whether

the deposition is intended for use at trial or for discovery purposes. In fact, the

decision simply affirms the broad discretion held by a district court in the

management of its cases and in ruling on matters involving discovery and

procedural requests.

Appellant draws support for its position by contending the purpose for the

B and I depositions was to preserve their "known" testimony. App.

Brief, p. 8, 12. However, Appellant made no showing below of the "known"

nature of their trial testimony. In support of its motion, Appellant produced no

sworn or informal witness statement(s) that it wished to preserve, nor any offer

of proof, or report or document authored by B or I that it was seeking

to admit at trial by their testimony. Appellant had provided only basic and scant

information on the personal knowledge of both persons to the present dispute in

its discovery responses. The Appellant failed to present any credentials

describing professional training, education, or qualifications to serve as

foundation for the results of ultra-sonic (UT) testing alleged to have been

performed by I Neither party had disclosed any statements or reports

26

specifically written by either witness for this proceeding. Based on this

presentation below, there is no basis to suggest the testimony of B or I

was actually "known" by either party, and especially by the Respondent. Thus,

any contention that Appellant understood what the testimony of each witness

would be, that Appellant sought only to memorialize known testimony of B

and I to offer at trial, and that Respondent knew the expected testimony of

both witnesses, is without factual support in the record. See Appellant's Brief 8-

9, 12.

B. Rule 29 Provides the Procedural Framework to Guide Custom and Practice

The Appellant, joined by amicus curiae, argues that depositions to

"preserve" trial testimony are routinely convened shortly before trial and long

after the discovery stage is completed. App. Brief, p. 17; Brief of Amicus Curiae

Minnesota Association for Justice, p. 12. They argue this reflects the practical

realities among litigating practitioners. While this convention may in fact be

followed by practitioners, it does not provide sufficient grounds for the Court in

this matter to recognize a distinction in "discovery" and "preservation of trial

testimony" depositions. The Rules do not presently sanction or govern such a

distinction. The provisions of Minnesota Rule of Civil Procedure 29, however,

grant attorneys and parties great latitude in stipulating to the use and taking of

depositions outside of the provisions of the court's scheduling order. Minn. R.

27

Civ. Proc. 29 (2013).

The custom and practice referred to by Appellant and amicus is especially

well-suited for expert opinion witnesses, e.g., high paid medical professionals or

other professional expert witnesses, who have already provided their expert

opinions to counsel by written reports exchanged in discovery and their opinions

and positions are well established by their prior writings or testimony given in

other like cases. This custom and convention should not give way to a party's

right to convene a deposition {or multiple fact and expert depositions) on the eve

of trial to preserve "fact" witness or expert opinion testimony, thereby ignoring

the plain application of discovery rules and scheduling order mandates.

C. The Trial Court's Permission to Take the Video Deposition of Kenneth Eickelberg During the Course of Trial Does Not Contradict its Prior Order

The Appellant contends that the district court's grant of permission in the

instant proceeding to conduct a video deposition of Kenneth Eickelberg to

preserve his testimony demonstrates its abuse of discretion in denying the

request to take B and I depositions. The video deposition was taken

on the afternoon of June 24, 2011 - during the period that Eickelberg was in

Minnesota to give his testimony and before his departure back to Las Vegas. The

Appellant's contention lacks merit for a variety of reasons.

First, there can be no fair comparison of the circumstances under which

28

the two requests were made. The deposition of Eickelberg to preserve his

testimony was necessitated only because of the medical emergency of

Appellant's counsel during the third day of trial (Wednesday). Eickelberg was

prepared to testify later that week in Appellant's case in chief before he would

return to Las Vegas. But for counsel's medical emergency which occurred during

the trial proceedings, Eickelberg would have appeared personally in court to

provide his live testimony to the Jury. Eickelberg's schedule did not permit him to

remain in Minnesota indefinitely so that he could take the stand whenever

Appellant's counsel was able to resume the trial.

Given Eickelberg's presence in Minnesota solely to give live testimony at

the trial for a limited time and his inability to give that testimony based only on

the medical emergency of counsel, the district court ruled, over objection, that

Appellant should be permitted to preserve Eickelberg's trial testimony by means

of a deposition. In granting this relief, the district court presumably found

sufficient grounds to distinguish the earlier request and little, if any, prejudice to

Respondent by using this means to offer trial testimony, as would be sanctioned

by Rule 32.01 once the witness was "unavailable." Although speculative, the

district court may have been influenced by the language advanced in Henkel to

make an exception where the facts demonstrated a "compelling circumstance

that would cause a miscarriage of justice if a late deposition" was not allowed.

29

See Henkel, 133 F.R.D. at 558. As noted herein, a district court may also amend a

scheduling order upon a showing of "good cause" and the district court may have

concluded these circumstances supported a finding of "good cause." Minn. Gen.

R. Prac. 111.

In comparing this request to the Appellant's earlier request, only minor

prejudice occurred to the Respondent. The deposition was convened during the

brief hiatus in the trial caused by the medial emergency and it created no

additional burdens on Respondent than would have occurred if Eickelberg had

given live testimony in the courthouse.

In contrast, the prior request by Appellant to take two {2} depositions in

Las Vegas in the immediate days prior to trial presents an entirely different set of

circumstances, including arranging for (and expense of} last minute travel and

lodging for an undefined period and interruption of trial preparation. Amicus

argues, 11Respondent was unable to identify any colorful prejudice that would

have been sustained had Appellant's motion been granted." Amicus Brief, p. 11.

This conclusion is unfounded. The dates for the two depositions had not yet been

scheduled; the length of each deposition was not known; no statements by either

witness had been provided; and Appellant proposed to take the depositions in

the immediate days preceding the commencement of trial. In the instance of

large litigation firms with multiple associates, secretaries and staff, these

30

uncertainties may represent only minimal logistical or trial preparation issues. For

the small firm or solo practitioner, however, they represent significant time and

calendar management issues. Also, for insurance, corporate and/or other 11Well-

heeled" clients, the cost of these eleventh hour excursions may be easily

absorbed and even threatened in ADR as a weapon to force de minimis

settlements. For clients who lack unlimited funding, however, the prospect that

an opponent has a 11right" to take unlimited, last minute 11trial" depositions would

result in great unfairness and prejudice. Respondent submits that the extension

of a 11right" to convene depositions for the limited purpose of preserving trial

testimony in the immediate lead up to a trial date simply grants license and

invitation to /(games play" and abuse.

D. Minnesota Rule of Civil Procedure 27 Provides the Exclusive Means by Which a Proponent May Preserve Testimony in Civil Proceedings

The Minnesota Rules of Civil Procedure provide one express rule that

governs depositions for the singular purpose of perpetuating (preserving} trial

testimony (and the use of such depositions at trial are also governed by Rule

4 32.01}. See Minn. R. Civ. Proc. R. 27.01. The only depositions described in the

4 Minnesota Rule of Civil Procedure 32.01 provides that the deposition of any witness may be used by any party for any purpose if the court finds that the witness is at a greater distance than 100 miles from the place of trial, unless it appears that the absence of the witness was procured by the party offering the deposition. As such, Rule 30 depositions taken for general discovery (both as to

31

Minnesota Rules of Civil Procedure, other than those authorized by Rule 30, are

depositions taken before an action is commenced or taken pending an appeal as

is expressly provided for in Rule 27. The provisions of Rule 27 do not apply here.

Rule 27 thereby addresses the specific purpose of preserving trial

testimony and it provides for the taking of a deposition in two limited instances:

Prior to the commencement of a proceeding and during the pendency of an

5 appeal. See Minn. R. Civ. Proc. R. 27. Case law and authorities interpreting Rule

27 have made it clear the purpose of this Rule is not for 11discovery" purposes.

See, e.g., Sandmann v. Petron, 404 N.W.2d 800 (Minn. 1987); Louisell, Discovery

and Pre-Trial Under the Minnesota Rules, 36 Minn. L. Rev. 633, 655 n. 63 (1952)

("Rule 27 pertains to perpetuation, rather than discovery as such * * * ."

(emphasis in original)). Rule 27 is thereby the singular Rule that specifies the

procedure allowed 11to preserve trial testimony" outside the context of general

discovery conducted in all civil actions. By its plain terms, Rule 27 has absolutely

fact and expert witnesses) purposes are available for use at trial.

5 Rule 27 allows for the perpetuation of testimony to prevent a failure or delay of justice. Sandmann v. Petron, 404 N.W.2d 800, 802 (Minn. 1987) (citing Minn.R.Civ.P. 27.01{3)). The Sandmann Court equated perpetuation of testimony to preserving trial testimony by stating and citing as follows: "Perpetuating testimony means "preserving the testimony of witness, which might otherwise be lost before the trial in which it is intended to be used." /d. (citing Black's Law Dictionary 1027 (5th ed. 1979)).

32

! I

I

I I

I

6 no application to the instant request.

Under the civil rules that govern this proceeding, Rule 30 makes no

distinction between discovery and preservation depositions and Rule 27 does not

apply to the requested relief. On this basis, the district court properly exercised

its discretion to reject Appellant's request.

E. Appellant Failed to Show Any Relevance in the Testimony of B or I to the Instant Contractual Dispute

Finally, in its request to the trial court, Appellant failed to demonstrate any

relevance in the B and/or I testimony. As specified by Rule of Evidence

402, "[e]vidence which is not relevant is not admissible." Minn. R. Evid. 402. If

evidence is not admissible, a party cannot claim to have been prejudiced in any

manner by its omission.

It was clear by Appellant's scant submissions that I could not offer any

relevant factual testimony at trial. Any purported testimony about his testing

using UT equipment was subject to a well-founded objection and motion in limine

that such testing was not relevant to the acceptance criteria applicable to any of

the goods supplied for the contract at issue. Further, any such testimony would

necessarily involve expert opinion testimony and Appellant did not disclose I

6 Other rules of procedure do recognize and distinguish the use of depositions for the specific purpose of preserving trial testimony, but not in civil litigation proceedings. See, e.g., State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991}; State v. Rud, 359 N.W.2d 573, 578 n. 1 (Minn.1984}.

33

as an expert in the joint statement of the case nor in its answers to

interrogatories. As such, any testimony offered by Appellant from I would

fail on relevance grounds and on the basis that his testimony was based on his

interpretation of results obtained from a complex testing method which would

require sophisticated expertise in the proper use and calibration of the testing

equipment he used to perform the test.

The instant proceeding involved contractual obligations and performance

of a contract entered into by and between Respondent, as fabricator, and

Appellant, as customer, of a complex, fabricated welded apparatus which

Appellant tendered to meet its separate contractual obligations to its customer,

CNLV Constructors II {"CNLV II"L in accordance with the contractual terms and

obligations specified in its direct contract with CNLV II, the owner/joint venture

consortium.

It was undisputed at the hearing that the "acceptance criteria" applicable

to the weldments on the apparatus Respondent supplied to Appellant under the

parties' contract was different than the contractual terms and specifications

required by CNLV II on the fabricated apparatus it sought to procure from

Appellant. CNLV II specified wholly different "acceptance criteria" in its

contractual terms and specifications with Appellant. Under the parties' contract,

Respondent was bound to perform its welding to satisfy a "visual inspection"

34

I

I I

I I I I

I j

standard as its "acceptance criteria" under Part C1 Section 6.9 of the applicable

structural steel welding code - AWS 01.1 {2008) (using the criteria set out in

Table 6.1 of AWS 01.1). See Ex. 47. I only relevant testimony would be as

an expert witness with information concerning the application of an elevated

"acceptance criteria" and not merely as a fact witness to the parties/ contract

"acceptance criteria. 11

In fact1 based upon the documents offered by Appellant at trial/ I

only participation in the dispute appears to have been as an expert resource

engaged indirectly by CNLV II to conduct ultrasonic testing of certain welds on

the components tendered by Appellant to meet CNLV Ws elevated acceptance

criteria. I was employed by Aztech Inspection Services. Aztech provided

complex testing services to its client Las Vegas Materials Testing (LVMT). LVMT

was contracted by CNLV II to provide inspection services on the CNLV II project.

I personally performed UT (ultrasonic testing) of weldments (on beam

moment plates) on the apparatus after it was shipped to Las Vegas/ Nevada.

Based on the report offered by Appellant (but not received)/ I appears to

have taken specific testing actions at the direction of and on behalf of

LVMT/CNLV II in order to determine Appellanfs compliance with different (and

elevated) acceptance criteria specifications applicable to Appellant. This testing

was performed to the "acceptance criteria" set out in Section 6.13 of the welding

35

I !

r I I I

I I I I

I I I

I I

code (using the criteria set out in Table 6.2}. See Ex. 47.

In briet the CNLV II contract specifications established an "acceptance

criteria" that required certain weldments to pass UT testing (and forms of testing

other than visual). I testimony of the UT results obtained from his testing

of weldments on the apparatus was therefore wholly irrelevant to any

performance issue in the instant dispute, given the undisputed distinction in the

"acceptance criteria" that governed the two distinct contracts referenced above.

As correctly determined by the trial court, there was simply no relevance

whatsoever in I testimony concerning the UT test results nor was there any

reason to bring such testimony before the jury in this matter. The production of

such testimony to the jury would unnecessarily confuse the jury on its

interpretation of the contractual obligations in the parties' contract and in the

jury's calculation of damages lawfully sought by the parties in this matter. The

introduction of such testimony could have resulted in substantial and undue

prejudice to the Respondent by intermixing two separate and completely distinct

contractual obligations related to "acceptance criteria" that were clearly used in

the two separate contracts.

Finally, because Appellant never disclosed I in any prior discovery

responses nor in the joint statement of the case as an expert qualified to perform

UT testing (nor by the expert disclosure deadline of March 18, 2011}, I

36

testimony in the purported context (to merely preserve trial testimony) of facts

belies the substance of the testimony intended to be captured.

Any "factual" testimony he would have offered would necessarily have

been founded upon his qualifications as an expert in the field of ultrasonic

testing, including his experience, knowledge, training, and education in the

instrumentation and methods used to perform such tests and his interpretation

and application of that experience and knowledge to the testing he performed

(and the results of testing) on the subject apparatus. As was set out in Part 0,

Section 6.14.3 of the AWS 01.1 Code, the procedure and technique of UT testing

had to conform with Part F of Clause 6 of the Code. Any such testimony would

involve "expert opinion" testimony. Section 6.13 of the applicable AWS 01.1

welding code clearly demonstrates the complexity of such testing and the need

for expert foundation qualifications for any person opining results of UT testing.

The Appellant's last minute request to preserve and present testimony

from I was tantamount to the preservation and subsequent presentation of

a surprise expert witness without any prior disclosure of this witness'

qualifications or his opinions during the discovery phase or in the Appellant's

pretrial disclosures. Given the complete absence of any relevance in the

proffered testimony by I to the "acceptance criteria" at issue in the parties'

contract, and the foundational need to qualify the witness as competent to offer

37

{/expert" opinion testimony on UT testing, the trial court acted within its sound

discretion to deny the request to take the deposition of I

In like manner, Appellant made no showing of relevance for any "fact"

testimony to be procured from B He was not identified as an "expert"

witness. Appellant did not submit any written materials or oral statements to

demonstrate any personal knowledge held by B regarding the terms or

conditions of the parties' contract. Appellant identified other CNLV II personnel in

its trial witness list who arguably had the same or similar personal knowledge as

B as to any claim of "product non-conformance". B testimony would

therefore be considered duplicative and repetitive, and not critical or essential to

any defense or claim advanced by Appellant at trial.

CONCLUSION

Respondent respectfully requests that this Court affirm the judgment

entered below in all respects. No distinction should be drawn between

"discovery" and "trial" depositions. Appellant has failed to show any prejudice in

presenting its claims or defenses by the trial court's order denying it permission

to take the I and B depositions after the close of discovery. If

warranted, any distinction to be drawn between "discovery" depositions and

depositions taken solely to preserve trial testimony should be addressed only by

38

rule amendment to specifically govern the scope, timing, taking and use of such

depositions at trial.

Dated:.Jtt.ud(t, 2013.

Dated: tV\~ lb., 2013. J

Respectfully Submitted, SHOEMAKER & SHOEMAKER, PLLC

ORNEYS AT LA\111

7900 International Drive, Suite 200 Minneapolis, MN 55425 Telephone: {952) 224-4600

HOVERSON LAW OFFICES, P.A. ATTORNEY AT LAW

A-:.2 t<. tit---Michael K. Hoverson# 175948 333 Washington Avenue N., Suite 308 Minneapolis, MN 55401 {612) 349-2728

Attorneys for Respondent

39

CERTIFICATE OF COMPLIANCE WITH MINNESOTA CIVIL APPELLATE PROCEDURE RULE 132.01

The undersigned hereby certifies as follows: He is familiar with the requirements of Minnesota Civil Appellate Procedure Rule 132.01; that the foregoing Formal Brief complies with the word count or line count limitation expressed in said Rule; that the name and version of the word processing program used to prepare the foregoing Formal Brief was Microsoft Office Word version 2007; that said Brief complies with the typeface and font requirements of said Rule; that the total number of words in said brief are 9177, as counted by said software, exclusive of pages containing the table of table of citations, any addendum containing st tutes, appendix attached hereto.