.
MORRILL ASPHALT PAVING
Docket No. WEST 2001-133-DM
July 26, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
July 26, 2002
CORD EASLEY, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 2001-133-DM
: Portable Crusher #1
:
v. : Mine I.D. 45-03357
:
MORRILL ASPHALT PAVING, :
Respondent :
ORDER DENYING RESPONDENT'S MOTION TO TAKE TESTIMONY
OF ROGER HARTING BY TELEPHONE
Counsel for Respondent filed a letter-motion requesting that it
be allowed to present the testimony of Roger Harding by telephone at
the hearing in this case. Counsel stated that Mr. Harting no longer
works for Respondent, lives in another state, and is not available on
the date scheduled for hearing. Counsel for Complainant filed an
objection.
Roger Harting is a critical witness in this case. Taking the
testimony of such a key witness as Mr. Harting by telephone is fraught
with difficulties and compromises Complainant's right of cross-
examination. The Federal Rules make it clear that testimony should
not be taken in such a manner except in extraordinary circumstances.
See Fed. R. Civ. P. 43(a) including Advisory Committee Notes for 1996
Amendment. Deposition testimony provides a superior means of securing
the testimony of a witness who is not available to testify. Id.
Consequently, Respondent's motion to take Roger Harting's testimony by
telephone is DENIED.
Richard W. Manning
Administrative Law Judge
Distribution:
Devin Poulson, Esq., Lacy & Kane, P.O. Box 7132, East Wenatchee, WA
98802-0132 (Fax and First Class Mail)
Lewis L. Ellsworth, Esq., Gordon Thomas, Honeywell, Malanca, Peterson
& Daheim, P.O. Box 1157, Tacoma, WA 98401-1157 (Fax and First Class
Mail)