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Goldstein v. Sofitel Chicago Water Tower et al.

January 18, 2011

GOLDSTEIN
v.
SOFITEL CHICAGO WATER TOWER ET AL.



Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE DOCKET ENTRY TEXT

Opinion:

Defendants' motion to supplement the record on appeal [186] is granted.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Frank Goldstein filed this negligence action in Illinois state court against Sofitel Chicago Water Tower and related entities (collectively, "Sofitel"). Sofitel removed the case to this court based on diversity of citizenship. The court held a bench trial beginning on March 1, 2010 at which the parties presented testimony from plaintiff's expert Dr. Vincent DiStefano. Dr. DiStefano testified by videotaped deposition.

At the time the deposition was taken, Dr. DiStefano had been disclosed as a fact witness, but not as an expert. Sofitel objected to the testimony, but the court ultimately allowed Dr. DiStefano to testify as an expert. At trial, Sofitel asked the court for another opportunity to cross-examine Dr. DiStefano. The court recessed the trial to give the parties the opportunity to brief the issue.

According to defendants, when Sofitel provided the court with a courtesy copy of its brief, it attached an outline of proposed questions for the requested deposition. The outline was marked "For In Camera Inspection Only," and it was never filed in the record or provided to Goldstein.

The trial eventually concluded, and the court found for Goldstein and awarded damages. Sofitel has appealed to the Seventh Circuit. It now moves pursuant to Federal Rule of Appellate Procedure 10(e) for this court to supplement the record on appeal with the three page outline of questions. Sofitel intends to argue on appeal that the court erred in denying Sofitel's motion to re-question Dr. DiStefano. Goldstein objects, arguing that (1) the court generally should not supplement the record with documents which were not actually filed with the court, and (2) there is no way for Goldstein to verify that the document now being proferred was actually before the court at the time it ruled on Sofitel's motion.

Rule 10(e) provides:

STATEMENT

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a ...


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