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Estate of Petersen v. Bitters

United States District Court, D. Nebraska

June 29, 2018

ESTATE OF JOYCE ROSAMOND PETERSEN, deceased; Plaintiff,
v.
WILLIAM E. BITTERS, and JOHN L. HENRY, Defendants.

          ORDER

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         At the time of the pretrial conference, the parties submitted an exhibit list which was improperly incorporated into the body of the final pretrial conference order, (see NECivR 16.2(a)(1)), with exhibit numbering that did not comply with the court's local rules. See NECivR 39.3(d). I offered to fix those issues for counsel, and to file the exhibit list after the conference. Counsel expressed appreciation for this assistance.

         On June 27, 2018, the day after the pretrial conference held on June 26, 2018, Plaintiff's counsel emailed me, with defense counsel copied, and asked me add two exhibits to the trial exhibit list. Today, I asked if either Defendant or Plaintiff had anything further that needed to be added to the exhibit list, including objections, before the final exhibit list was filed. Defense counsel asked that I note Defendant's evidence rule objections, along with a Rule 26(a)(3) objection to Plaintiff's two additional exhibits because they were never previously disclosed as trial exhibits. Defendant further asked the court to add the CV of Bitters' expert witness to the exhibit list. I then entered an order requiring Plaintiff's counsel to file documentation showing Plaintiff's two additional exhibits were previously and timely disclosed as trial exhibits, and to state if and what objections it wanted to note on the exhibit list regarding the CV of Defendant's expert.

         In an email sent to the undersigned magistrate judge and all counsel, Plaintiff's counsel objected to allowing additional exhibits to be added to the exhibit list by email request, complaining that this process showed favoritism to the defendant. Plaintiff's counsel further states he does not have time to file another brief, presumably on the exhibit disclosure issue. See attached.

         Under the court's local rules, all exhibits must be listed in the exhibit list prior to the pretrial conference. NECivR 16.2(a)(1). As such, since objections have been raised by both sides, and since my efforts to assist have been misconstrued by Plaintiff's counsel, I will strictly enforce the local rules and will not honor either parties' post-pretrial conference request to add exhibits to the trial exhibit list.

         Dear Magistrate Judge Zwart:

         If the Court does not allow Plaintiff to add two exhibits then Plaintiff would object to the unequal treatment of the Court in allowing Defendant to add an exhibit where Plaintiff has not been allowed to do so.

         Plaintiff also objects that the Court is receiving email motions from Defense whereas, in the past, the Court emailed Plaintiff that it did not wish to hear issues by email when they were raised by Plaintiff.

         Plaintiff also objects that the Court has put the burden of proof on Plaintiff (Dkt. #230) regarding two exhibits to add whereas Defendant has not been similarly required to make a filing to support its introduction of an exhibit that was not in the exhibit list submitted in the Pretrial Conference Order.

         It is Plaintiff's understanding that one of the exhibits (pictures of Ms. Petersen) was discussed at the pretrial conference on June 26 and accepted but now the issues is being revisited. Plaintiff objects to this and to the Court's order of today requiring a filing to be made before the close of business on this issue, insufficient time when the Court has already overburdened Plaintiff with filing three other briefs by today.

         Sincerely, Robert J. Gaudet, Jr. Plaintiff's co-counsel

         Subject: RE: issues list I will be entering an order requiring Plaintiff to show that the two additional exhibits were disclosed at least 30 days before trial as required under Rule 26.

         In the meantime, I have added the defense expert's CV to the exhibit list. Does Plaintiff have any objection I ...


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