IN THE UNITED STATES DISTRICT COURT
PLAINTIFFS' OPPOSITION TO MICROSOFT'S MOTION TO STRIKE THE
The Plaintiffs' designations of various admissions in depositions of Microsoft employees and designations of portions of selected depositions of third party witnesses are appropriate, and Microsoft's motion to strike certain of those designations should be denied. Microsoft's argument ignores the plain language of Pretrial Order No. 2 and the Federal Rules of Evidence relating to party admissions and deposition designations.
I. Admissions of Microsoft Employees
Any relevant statement by a Microsoft employee is admissible as an admission of a party whether made in an e-mail message, a newspaper, or a sworn deposition; such a statement does not become less admissible because it is made under oath subject to cross-examination in a deposition as opposed to in a more informal way. See, Fed. R. Evid. 801(d)(2)(D) (an admission by a party-opponent is one offered against a party and is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship"). Pretrial Order No. 2 recognizes this obvious fact. The language of Paragraph 4 is clear; the restrictions and limitations stated in Paragraphs 4(a) - 4(e) apply only to deposition excerpts of third parties, and specifically do not apply to the use of deposition testimony "for purposes of proof of an admission by a party opponent or impeachment of a trial witness." (Pretrial Order No. 2, ¶4.)
II. Plaintiffs' Designation of Scott Vesey's Deposition Was Reasonable
Microsoft's claim that Plaintiffs have designated "nearly all" of Scott Vesey's deposition transcript for the record is simply wrong. In fact, Plaintiffs have carefully designated specific page and line numbers from Mr. Vesey's deposition. Indeed, the actual number of lines designated from the deposition accounts for less than 30% of the transcript. Given that significant portions of Mr. Vesey's testimony are highly relevant and strongly support Plaintiffs' case, and given that Microsoft had and exercised fully the ability to cross-examine Mr. Vesey, Plaintiffs' designation of limited portions of the deposition are reasonable and appropriate under Paragraph 4(b) of Pretrial Order No. 2. Moreover, Mr. Vesey's designated deposition excerpts will be relied on and corroborated by the direct testimony of at least one of Plaintiffs' trial witnesses.
Plaintiffs' exercise of their right to substitute another witness for Mr. Vesey on their final witness list does not preclude Plaintiffs from now designating limited, relevant excerpts of Mr. Vesey's transcript. And of course, the Court remains free to "disregard deposition testimony it deems immaterial, collateral, cumulative, or confusing." See Pretrial Order No. 2, ¶ 4(b).
III. Deposition Excerpts of Mr. Barrett and Ms. Reichal From Another Matter Are Admissible
The deposition testimony of Phillip Barrett and Stephanie Reichal taken in the Caldera v. Microsoft matter is admissible as former testimony under Federal Rules of Evidence 804(b)(1). Mr. Barrett and Ms. Reichal are former Microsoft employees living in the State of Washington. Microsoft is correct that Mr. Barrett and Ms. Reichal were not Microsoft employees at the time of their depositions, and their deposition designations should have been listed in Appendix C to Plaintiffs Final Pretrial Statement under the subheading "Designations of Deposition of 3rd Party Witnesses," rather than under "Admissions of Microsoft Employees or Representatives," as they were inadvertently listed.
Properly viewed as third-party designations, Mr. Barrett's and Ms. Reichal's deposition excerpts are nonetheless admissible under Rule 804(b)(1). Under Rule 804(b)(1), "Testimony given as a witness . . . in a deposition taken in compliance with law in the course of . . . another proceeding," is admissible as former testimony "if the party against whom the testimony is now offered, . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." In the Caldera v. Microsoft litigation, Microsoft had a full opportunity, and the same motive as here (Microsoft is the Defendant in that antitrust litigation), to cross-examine the witnesses in those depositions. Thus, because the testimony is relevant to the current matter and Microsoft had an opportunity to cross-examine both witnesses, the designations should not be excluded.
CERTIFICATE OF SERVICE
The undersigned certifies that on October 23, 1998, a copy of the Plaintiffs' Opposition to Microsoft's Motion to Strike Deposition Designations was served by facsimile upon:
Counsel for Microsoft Corporation
Richard J. Urowsky, Esq.
James R. Weiss, Esq.