Jockey Pat Day and stewards at Turfway Park will have to give sworn testimony as a result of a U.S. District Court judge's denial of a motion to dismiss a case in which Day is accused of striking another horse with his whip during the $250,000 Turfway Park Breeders' Cup Sept. 16, 2000.Day was aboard Spain, who won by a length over Ruby Surprise. The second-place finisher's owner, James Hines, said the incident affected his horse's chances to win. Trainer Robert Holthus telephoned the stewards after the race to complain, but said no "inquiry" or "objection" signs were posted.Judge William Bertelsman ordered a period of discovery that will last until Sept. 1. Lawyers will conduct depositions during that time. Lawyers for Hines said the case isn't designed to determine whether the action was intentional.