. 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)