C. Patrick Bates 801-560-4259 cpb@bateslandco.com. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. Union Pacific has twice amended its complaint (ECF Nos. Zubulake, 229 F.R.D. 143) is denied. In Nevada, "[r]etroactivity is not favored," and courts generally interpret regulations to "only operate prospectively unless an intent to apply them retroactively is clearly manifested." Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). 122) is granted in part and denied in part. 141-5 at 9-10, 12, 30-32; ECF No. At the time of this writing, the undersigned has presided over one criminal in-person jury trial since the COVID-19 lockdown orders went into effect in early March 2020, which included hearing from both witnesses in-person and via ZOOM video conferencing. ECF No. ///. ECF No. 3:17-cv-00163-RCJ-VPC MEMORANDUM Appeal from the United States District Court for the District of NevadaRobert Clive Jones, District Judge, Presiding Argued and Submitted December 17, 2018 San Francisco, California Before: CALLAHAN and N.R. Federal Rule of Evidence 706 permits district courts, in their discretion, to appoint a neutral expert. ECF No. We are so incredibly thankful that Patrick Bates and David Packer of Bates Land Consortium, Inc chose us to produce this mammoth of a marketing video. 120-1 at 3. Winecup opposes this motion arguing that Ninth Circuit precedent permits a 30(b)(6) deponent that answered "I don't know" to supplement, contextualize, and even contradict such statements at trial, and that a 30(b)(6) deponent who answers "I don't know" to questions outside the scope of the 30(b)(6) notice is not penalized. B at 2. LARRY R. HICKS UNITED STATES DISTRICT JUDGE. Mediation Questionnaire. While Plaintiff claims that it orally informed Mr. Worden to preserve ESI, this is woefully inadequate as discussed above, but evinces that Plaintiff and Mr. Worden knew they had a duty to preserve the ESI. iii. The optional reply brief is due 21 days from the date of service of the answering brief. 8. ECF No. ii. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. The existing briefing schedule remains in effect. Co., 372 F.Supp.3d 470, 484 (W.D. Conversely, Clay Worden was never an employee of Winecup, and testified in Gordon Ranch in his individual capacity, not as a corporate witness or agent of Winecup. La. Following the Nevada Supreme Court in Thitchener, as a matter of law, a plaintiff is not entitled to pursue punitive damages on negligence claims. Union Pacific argues that Lindon is not a qualified expert in meteorology because he does not hold a degree or certificate in the field. 91). 156. 6. A at 14.) ///. 193) is granted in part and denied in part. And, neither Mr. Fireman nor Mr. Worden are able of producing these text messages. Union Pacific argues that because Winecup was required under Nevada law to maintain the 23 Mile dam to withstand a 100-year flood event and the Dake dam to withstand a 1000-year flood event, the failure of the dams and the subsequent flooding could not be considered "abnormal" or free from "human assistance or influence" such that Winecup could prove the prima facia elements of the defense. R. EVID. In the alternative, Defendant further requests that the Court prevent Plaintiff from relying on any evidence or testimony from Mr. Worden or give the jury an instruction that the deleted evidence is adverse to Plaintiff's claims and defenses. See Francis v. MSC Cruises, S.A., Case No. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. (Id.) The Ninth Circuit has made clear that district courts "should generally allow amendments of pretrial orders provided three criteria are met: (1) no substantial injury will be occasioned to the opposing party, (2) refusal to allow the amendment might result in injustice to the movant, and (3) the inconvenience to the court is slight." First, the evidence shows that the ESI was deleted after a duty arose to preserve it. Union Pacific argues that the Dake dam's inoperable outlet and failed embankment section near the spillway intensified the flood waters and contributed to the damage to Union Pacific's tracks, and had an emergency action plan been in place, these inadequacies would have been addressed. ECF No. IT IS FURTHER ORDERED that Winecup's fourth motion in limine to exclude evidence and argument that Union Pacific is entitled to punitive damages (ECF No. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. For 25 years, Lindon worked at the Utah Department of Natural Resources, Division of Water Rights, Dam Safety Section, in part, creating "hydrological models to simulate hypothetical storms and floods and re-create actual events, such as rain on snowpack events, that resulted in flooding and dam failures." As part of its holding, the Ninth Circuit noted that that the Court may consider parol evidence to resolve ambiguities in contractual language under Nevada law. Additionally, because the Court is best positioned to rule on relevancy issues at trial when it can consider the evidence in context, the Court will reserve ruling on the relevancy of Fireman's testimony until that second proceeding as well. The Court therefore denies Winecup's fifth motion in limine without prejudice and reserves ruling on such evidence until it can be adjudged in the context of trial. iii. Public Records Policy. The Court took numerous safety precautions in the courtroom to ensure that all participants, attorneys, witnesses, and the Court staff, were protected, which included installing plexiglass partitions and implementing sanitization protocols. 120-1 at 5. ECF No. As discussed above, Razavian's opinion the subject was first disclosed during his February 2017 deposition. If the parties determine that a jury trial is necessary, the Court would likely not be able to set it before the middle of 2021 due to the backlog of criminal jury trials. Co. v. Gen. Elec. As the parties have already agreed to prepare their exhibits electronically, juror binders are unnecessarily redundant. ECF No. He has taken continuing education courses in hydro-meteorology, and has "operated the National Weather Service Station for Park City, Utah for the past 26 years, measuring and reporting temperatures, snowfall, snowpack and precipitation daily." ECF No. A Test Site for How to Monitor Success. Union Pacific has twice amended its complaint (ECF Nos. The most relevant evidence for these determinations would again be Mr. Worden's lost ESI. Shot over two years on the spring wagon. Ex. Under Federal Rule of Evidence 705, "[u]nless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. Godwin's curriculum vitae provides that he has a degree in civil engineering with a concentration in "structures," and holds professional membership in the American Railway Engineering and Maintenance-of-Way Association, the American Short Line and Regional Railroad Association, and the Regional Engineering-Maintenance Suppliers Association. Union Pacific's tenth motion in limine requesting that the Court instruct the jury before trial about certain laws that apply to Nevada dam owners (ECF No. v. Reyes, Case No. This statute, titled Construction, reconstruction or alteration of dam: Permit to appropriate water required; notice; approval of plans and specifications; inspection; exemptions; penalty, provides: Union Pacific further argues that Winecup "abandoned" the Dake dam which constitutes an "alteration" within the meaning of NRS 535.010 and required Winecup to submit a plan for approval, which it failed to do. Winecup opposes. 159. The Court relies on its above statements of law regarding its gatekeeper function in determining the admissibility of expert testimony and sees no reason to reiterate it here. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. ECF No. Razavian's February 27, 2019 deposition (occurring approximately two years before trial) and Razavian's January 17, 2020 declaration (provided approximately one year before trial) provide his opinion regarding the mile post 670.03 washout in great detail. REVERSED, VACATED, and . 131. Mediation Questionnaire due on 07/29/2020. Snapp v. United Transportation Union, 889 F.3d 1088, 1103 (9th Cir. P. 26(a)(2)(C). ECF No. ECF No. (ECF No. ///. 123) is DENIED. It is this Court's practice to allow jurors to take notes and given the complexity of this case, the number of exhibits, and the scientific expert testimony expected to be presented, the Court sees no reason to deviate from this practice. Union Pacific motions the Court to prohibit Winecup from offering any expert witnesses, including expert testimony from Luke Opperman, the Nevada Department of Water Resources engineer who inspected both the 23 Mile Dam and the Dake Dam before and after the incident, because he was not disclosed as an expert and Winecup failed to provide a written report as required under Federal Rule of Civil Procedure 26(a)(2)(A)-(B). Id. winecup gamble ranches llc. Lindon's opinion on the subject remained the same in this disclosure as it was in his prior report. See ECF Nos. See ECF No. [12077160] (AF) [Entered: 04/16/2021 11:36 AM], Docket(#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). 9. Id. Id. iv. Winecup Gamble Ranch is part of the Agriculture industry, and located in Nevada, United States. Mediation Questionnaire due on 03/16/2021. Under Nevada law, punitive damages are available in a negligence suit "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied[.]" Before deciding on how damages are to be calculated, the Court will permit Winecup the opportunity to respond to Union Pacific's reply; briefing is not to exceed 15 pages of argument, excluding tables of contents and authorities and administrative notices. Razavian testified that it was his opinion that the "destructive force" of the runoff associated with the "flood pulse" from the 23 Mile dam failure washed out the tracks. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. 141. Second, Defendant has shown that Plaintiff failed to take reasonable steps to preserve the ESI after the duty arose to preserve it. 112. ECF No. Any further errors asserted by Union Pacific regarding Lindon's expert testimony are best left to cross-examination and presentation of contrary evidence as each goes to the weight of his testimony, not admissibility. ECF No. (Id. 3:21-CV-00226 | 2021-05-14, U.S. District Courts | Contract | MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). ECF No. See ECF No. (ECF No. Judgment on the pleadings should not have been granted, because the ambiguity described above and the dispute over the parties' intent when they amended their agreement presents a disputed issue of material fact. See Daubert, 509 U.S at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], (#4) The Mediation Questionnaire for this case was filed on 07/28/2020. While Union Pacific pleads that it "may rely on additional statutes and administrative codes that may become known to be applicable in the future," it does not list any Nevada Revised Statute that would provide the basis for its negligence per se claim. ; ECF No. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . . Union Pacific's eleventh motion in limine to bar Rule 702 opinions (A) generally, if not in expert reports, and (B) specifically, from Luke Opperman (ECF No. ECF No. Third, some of the lost ESI is not attainable through additional discovery. 250,000 ACRES DEEDED LAND WITH GRAZING RIGHTS ON OVER 1,000,000 ACRES. The Court will not conflate the question of admissibility with the weight to be given the testimony by considering the persuasiveness of competing scientific methods; those questions are for the fact finder. [12101491] (DLM) [Entered: 05/04/2021 12:13 PM], (#7) Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Winecup Gamble, Inc.. New requested due date is 06/21/2021. (#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. (ECF No. Union Pacific's combined fifth and sixth motion in limine to bar two opinions of Derek Godwin (ECF No. 1989) (reviewing the district court's interpretation of a contract de novo). Winecup presents no such exception that would apply. 2001) (citation omitted). Godwin testified that the RS Means methodology is the "industry standard" for estimating construction costs. 401. Appellant's optional reply brief is due 21 days after service of the answering brief. Pursuant to Nevada Revised Statutes 42.005(4), "[e]vidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed." Cattle ranch located in Northeastern Nevada, where our goal is to provide a healthy and wholesome be Winecup Gamble Ranch | Montello NV . Union Pacific also requests that the Court permit and provide a means for jurors to take notes. Winecup Gamble Ranch has 1,500 acres of pivot-irrigated fields and another 500 acres under wheel and flood irrigation. 120. . 150. Winecup further argues that Razavian fails to offer an opinion that floodwater from the 23 Mile dam caused the washout at mile post 670.03. Id. 130) is denied without prejudice. Union Pacific's seventeenth motion in limine to bar Winecup from providing trial testimony that contradicts its Rule 30(b)(6) witness's deposition testimony (ECF No. In the 2012 inspection report, it is noted that the spillway should be cleared of all debris and vegetation, however, in 2016, the inspection report provides that the spillway has lost its design capacity due to vegetation growing and earthen materials sluffing from the hillside.

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