The duty to preserve commenced at least by this date. ECF Nos. ECF No. "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." Accordingly, Union Pacific's nineteenth motion in limine is granted. A reasonable party would have foreseen litigation on the horizon as soon as the parties began exchanging communications expressing their competing interpretations of the contract and the amendment. Id. Accordingly, the Court denies Union Pacific's requested exclusion. ECF No. Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. j***@winecupgambleranch.com. See, e.g., Mallard Bay Drilling, Inc. v. Bessard, 145 F.R.D. Union Pacific alleges that as a result of the dam's failure, water flowed downstream, in part, to the Dake Reservoir dam, and that the Dake then eroded and breached, causing flooding and ultimately washing out a significant portion of Union Pacific's railroad tracks. Id. 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. Date of service: 07/29/2020. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. . 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. 139) is DENIED. Union Pacific pleads in its second amended complaint that the following Nevada Administrative Codes impose a standard of conduct obligating Winecup to act in accordance: NAC 535.370, 535.040, 535.240, 535.320. 112) is DENIED. 3:12-cv-00344-RCJ-WGC, 2015 WL 260873, at *4 (D. Nev. Jan. 21, 2015) (emphasis in original). unless the failure was substantially justified or is harmless." 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. 157-32 at 2. ECF No. Union Pacific's arguments to exclude Godwin's opinion go not to admissibility, but to the weight and are best left to cross-examination during trial; the exclusion is denied. Under Federal Rule of Evidence 702, a witness may be qualified as an expert based on his or her knowledge, skill, experience, training, or education. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. 133; 133-1. Phillips v. C.R. 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[.]" However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of" unfair prejudice. Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. Id. A Test Site for How to Monitor Success. Date of service: 07/28/2020. The Ninth Circuit has held that the "[a]uthority to determine the victor in such a 'battle of expert witnesses' is properly reposed in the jury." IT IS FURTHER ORDERED that default judgment is entered in favor of Defendant's Counterclaim of Declaratory Relief (ECF No. IT IS FURTHER ORDERED that Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. See ECF No. Even then, rulings on these motions are not binding on the court, and the court may change such rulings in response to developments at trial. MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). However, Plaintiff did nothing more than orally inform their chief negotiator and accountant to preserve the ESI, and Mr. Worden allowed his computer to be upgraded without backing up his information and did not suspend his company's aggressive deletion policy and backup settings to accommodate his duty to preserve evidence. 80.) [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. (ECF No. "These factors are 'meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.'" Work Experience Gamble Ranch Manager Winecup Gamble Ranch 2015-2023 Board Memberships & Affiliations Board Member Western Landowners Alliance 2019-2021 Advisory Board Member Seventh Generation Institute 2019-2021 View James Rogers's full profile Margrave v. Dermody Prop., 878 P.2d 291, 293 (Nev. 1994) (per curiam); see LK Comstock & Co. v. United Eng. FED. Research the case of Winecup Gamble, Inc. v. Gordon Ranch LP, from the D. Nevada, 03-17-2022. Second, Defendant has shown that Plaintiff failed to take reasonable steps to preserve the ESI after the duty arose to preserve it. It also helps that the Winecup Gamble has so many pastures to choose from. Nonetheless, even if Mr. Worden deleted the emails immediately after receiving them, the facts show that he was still producing ESI regarding this case after the duty to preserve arose. Accordingly, the Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. SMITH, Circuit Judges, and OLGUIN, District Judge. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). See order for instructions and details. And, "[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." LARRY R. HICKS UNITED STATES DISTRICT JUDGE. Jun. Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). However, since the Court held its first jury trial in September, the numbers of infected individuals in Washoe County has increased significantly, and led District Court Chief Judge Du to implement General Order 2020-03, postponing all in-person jury trials until further notice. Union Pacific has presented no evidence or rule to support the Court's exclusion of any and all evidence or testimony on the issue. Therefore, Union Pacific's fifth and sixth motions in limine are denied. Id. (ECF No. 112) are denied. ECF No. 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. 150. Public Records Policy. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). ECF No. ECF No. ECF No. The case involved the sale of a ranch and whether $5 million in . 107 Ex. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. "This general proposition should not be overstated, however, because it applies only where the purportedly conflicting evidence truly, and without good reason or explanation, is in conflict, i.e., where it cannot be deemed as clarifying or simply providing full context for the Rule 30(b)(6) deposition." Gordon Ranch LP v Winecup Gamble Inc | 3:17-CV-00157 | Court Records Winecup motions the Court exclude the opinions and testimony of Union Pacific's hydrology expert, Daryoush Razavian, regarding the washout at mile post 670.030. Here, the material in the supplemental disclosure relates to Lindon's analysis after hearing Razavian's opinion from his February 2017 deposition. Appellee Gordon Ranch LP answering brief due 07/21/2021. 123) is denied. FED. ECF No. Alternatively, even if the regulation did preempt the state common law standard, the federal standard would apply and not preclude the defense itself. Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. . at 840. IT IS FURTHER ORDERED that Union Pacific's twelfth motion in limine to Bar Evidence or Argument about (A) the Oroville Dam Spillway Failure, or (B) Weather or (C) Flood Conditions in Watersheds West of the Relevant One (ECF No. Winecup opposes, arguing that (1) it has not admitted these facts and they are not "undisputed;" (2) the facts are irrelevant; (3) Worden is a third-party witness whose deposition testimony is not admissible under Federal Rule of Evidence 801(d)(2) and Federal Rule of Civil Procedure 32(a)(8); and (4) that Union Pacific's failure to conduct this discovery during this case precludes it from now using the information. Ins. Co. v. Gen. Elec. The Court finds that while Winecup's disclosure that it intends to have these witnesses testify as a non-retained experts was technically late, Union Pacific has not been prejudiced by this late disclosure and it is harmless. ECF No. (Id. 5. The Court dismisses Plaintiff's complaint and enters judgment in favor of Defendant on its counterclaim. WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Defendant-Appellee. The FRSA also includes an express preemption provision: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . B. Ins. The subject property, commonly known as the Winecup Gamble Ranch ("the Property"), comprises approximately 247,500 deeded acres, rights to federal grazing permits covering approximately 558,080 acres, and Nevada state grazing rights covering approximately 142,800 acres. However, Winecup may argue that it is not negligent or that a non-party is solely responsible, and Winecup may proffer admissible evidence in support thereof. While Union Pacific argues that these witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific testimony for trial. Union Pacific argues that it had previously hired consulting experts early in the case who were eventually replaced by those now acting as testifying experts, which Winecup tried to learn about during discovery. Union Pacific further argues that Chapter 535 of the NAC specifies when certain regulations do not apply to dams in existence prior to March 15, 1951, which indicates that any regulation without that specific exclusion applies to all dams. Union Pacific attacks Lindon's meteorology testimony, arguing that Lindon's model used (1) an incorrect time period, and (2) the wrong weather station data. The optional reply brief is due 21 days from the date of service of the answering brief. Ex. The amended agreement is certainly not susceptible only to the interpretation adopted by the district court, regarding whether the amendment sought to change or modify the detailed risk-of-loss scheme detailed in the terms of the parties' original agreement. Additionally, the Court finds that Union Pacific's request that evidence of weather and flood conditions in watersheds other than in the "relevant one," with no definition of "relevant," is overly broad and the Court cannot make a ruling on that basis. On the other hand, harsher sanctions are available if the moving party shows that the nonmoving party acted with the intent to deprive the moving party of the information's use in the litigation, then the Court may (1) presume that the lost information was unfavorable to the party, (2) instruct the jury that it may or must presume the information was unfavorable to the party, or (3) dismiss the action or enter a default judgment. i. 131) is denied without prejudice. (See, e.g., ECF No. Winecup motions the Court to exclude Union Pacific from arguing or presenting evidence that NAC 535.240 applies to the 23 Mile or Dake dams. "); NAC 535.080 ("Probable maximum flood" means "a hypothetical flood whose magnitude is: 1. R. CIV. Union Pacific's arguments against his qualifications go to the weight of his testimony, not admissibility, and are best left to vigorous cross-examination. Union Pacific cites several sections of the NRS and NAC that it argues plainly apply to the Winecup dams, and letters from the State Engineer which show that Winecup was aware that certain sections of these statutes and regulations applied to the dams. R. EVID. Id. 91). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." Furthermore, Winecup argues that "to the extent Union Pacific's testifying experts relied on information from a 'consulting' expert, that information would also be admissible," pursuant to Federal Rule of Evidence 705. At nearly a million acres, the Winecup Gamble Ranch, a mountainous Nevada spread hard up against the Utah border, puts Rhode Island to shame. The language of the amendment does not specifically state that this result was desired or intended, and, in the absence of such a clear statement of the parties' intent, we find that the parties' agreement is ambiguous in this particular respect. 10. The Court finds that allowing Union Pacific to amend the pretrial order on this issue will not result in injustice to Winecup and any inconvenience to the Court is slight. Some of the most important evidence for this inquiry would be the work papers of Plaintiff's accountant, Mr. Worden, who no longer has any ESI on his devices regarding this case. Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. The Court finds that exclusion of Worden's deposition will not result in injustice to Union Pacificit is still permitted to present evidence of Winecup's financial situation through Fireman should this case reach the punitive damages phase. Only 7 inches of precipitation is received annually. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. And, neither Mr. Fireman nor Mr. Worden are able of producing these text messages. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM], U.S. Courts Of Appeals | Property | ECF No. 157-24, 157-28. at 44:19-45:1), inappropriate backup settings (Id. While the Court expects in-person jury trials to resume in early 2021, the parties should consider the constraints of holding a civil jury trial during the COVID-19 pandemic as they proceed with the litigation of this matter and in determining whether a bench trial via ZOOM video conferencing is a feasible option. eDiscovery Assistant Newberry v. Cty. 107 Ex. See Ringle v. Bruton, 86 P.3d 1032, 1037 (Nev. 2004) (holding that parol evidence may be considered to resolve ambiguity and determine the parties' intent). Co. v. Colorado Cas. 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. 141-2 6. Id. winecup gamble inc. winecup gamble ranch people. Appellant's optional reply brief is due 21 days after service of the answering brief. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. 157. 139 at 8. Here, culverts and earthen embankments existed at the washed-out track locations. 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." The Court considers the overall statutory and regulatory scheme and finds that the hazard classifications assigned by the State Engineer must be considered within the context of NAC 535.240. The court's role is to "screen the jury from unreliable nonsense opinions, . 130) is DENIED without prejudice. IT IS FURTHER ORDERED that Union Pacific's eighteenth motion in limine to bar Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No. IT IS FURTHER ORDERED that Union Pacific's fifteenth motion in limine to bar one paragraph in an email referencing contract truck driver incidents (ECF No. Winecup and Gordon Ranch entered into a Purchase and Sale Agreement with an effective date of October 18, 2016 (the "Purchase Agreement") for sale of approximately 247,500 acres, together with other real and personal property rights, interests, and cattle, in Elko County, Nevada.