United States District Court, D. Arizona
ORDER
Honorable Diane J. Humetewa United States District Judge
Before
the Court is Defendant's Expedited Motion for Trial
Deposition of Lt. Joe Tomory (Doc. 103). The Court Ordered an
expedited briefing schedule and did not permit Defendant to
file a Reply. (Doc. 104). In compliance with the Court's
Order, Plaintiff filed his Response on March 5, 2019. (Doc.
105).
Defendant's
Motion requests leave to take a videotaped trial deposition
of Lt. Tomory pursuant to Federal Rule of Civil Procedure
(“Rule”) 32(a)(4)(C) to preserve Lt. Tomory's
testimony so that it can be played at trial. (Doc. 103).
Trial in this matter is scheduled to begin on April 2, 2019,
and Defendant provides that Lt. Tomory “is scheduled to
have back surgery at the end of March” and his
estimated recovery time is four weeks. (Id.)
Defendant further provides that “Lt. Tomory's back
surgery was unexpected and unanticipated.”
(Id.) In the parties' Joint Proposed Final
Pretrial Order, the parties stipulated that Lt. Tomory was
one of Plaintiff's supervisors in the Robbery Unit. (Doc.
81 at 4). Additionally, Defendant listed Lt. Tomory as a fact
witness that it intended to call at trial and listed several
exhibits authored by Lt. Tomory that it intended to introduce
at trial. (Id. at 17, 13, 22). Plaintiff opposed
Defendant's Motion, arguing that fact discovery has
closed and that allowing the deposition of Lt. Tomory is
highly prejudicial. (Doc. 105). Plaintiff, however, fails to
specifically explain how he would be prejudiced.
(Id.)
The
Court has found no Ninth Circuit authority addressing whether
the type of trial deposition that Defendant seeks is a
“discovery” deposition subject to the limits in
the Rules or a deposition that is exempt from those
strictures. Authority from other district courts is scant and
conflicting. Compare Integra Lifesciences I, Ltd. v.
Merck KgaA, 190 F.R.D. 556, 558 (S.D. Cal. 1999)
(“Based upon the lack of distinction in the Federal
Rules between trial and discovery depositions, it has been
held that there is no difference between the two, and that if
a party wishes to introduce deposition testimony at trial,
that testimony should procured [sic] during the time
set by the court to conduct discovery absent exceptional
circumstances.”), with Estenfelder v. Gates
Corp., 199 F.R.D. 351, 356 (D. Colo. 2001) (finding that
the depositions were to preserve testimony were not
constrained by the court's scheduling order). However,
the Court finds the reasoning in the cases which hold that
these so-called “trial depositions” are subject
to the limits in the Rules to be the most persuasive.
Energex Enterprises, Inc. v. Shughart, Thomson &
Kilroy, P.S., 2006 WL 2401245, at *7 (D. Ariz. 2006)
(finding there is no distinction in the Rules between trial
and discovery depositions; thus, the court denied
plaintiff's motion to conduct additional depositions when
the only proffered reason was judicial economy and reduction
of trial expenses); see also Perez v. Jie, 2015 WL
11234149, at *2 (W.D. Wash. Feb. 3, 2015) (finding that the
trial depositions plaintiff sought to take were subject to
the discovery deadline set forth in the court's
scheduling order; thus, the court considered whether good
cause existed to modify that deadline).
Having
determined that the trial deposition Defendant seeks is
subject to the discovery deadline set forth in the
Court's Scheduling Order, the Court now considers whether
good cause exists to modify this deadline to permit the
deposition of Lt. Tomory. Fed.R.Civ.P. 16(b)(4). Rule
16(b)'s “good cause” standard primarily
considers the diligence of the party seeking the
modification; the district court may modify the pretrial
schedule “if it cannot reasonably be met despite the
diligence of the party seeking the extension.”
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992) (citation omitted); see also Zivkovic
v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 (9th Cir.
2002) (good cause not shown where plaintiff had failed to
“demonstrate diligence in complying with the dates set
by the district court”).
Here,
the Court notes that Lt. Tomory's back surgery was
unexpected and unanticipated and as discovery in this case
closed nearly two years ago, on March 17, 2017, Defendant
would have been unable to anticipate Lt. Tomory's
unavailability for trial prior to the close of discovery.
Thus, the Court finds that good cause exits to allow
Defendant to take a trial deposition of Lt. Tomory. See
Perez, 2015 WL 11234149, at *2 (finding that there was
good cause to allow plaintiff to depose two witnesses that
were available for the original trial date but unavailable
for amended trial date).
Accordingly,
IT IS ORDERED that Defendant's Expedited
Motion for Trial Deposition of Lt. Joe Tomory (Doc. 103) is
GRANTED;
IT
IS FURTHER ORDERED that the trial deposition of Lt.
Joe Tomory must commence on or before March 20,
2019, the deposition is limited to three (3) hours per
party, and the scope of the deposition is limited to Lt.
Tomory's “interactions with and observations of
Plaintiff during Plaintiff's tenure with the PPD Robbery
Unit.” Counsel for both parties are directed to meet
and confer no later than March 8, 2019, to determine
an appropriate date and time on which to conduct the
deposition of Lt. Joe Tomory;
IT
IS FURTHER ORDERED that the parties must meet and
confer no later than March 25, 2019, regarding the
portions of the Lt. Tomory's deposition that either party
intends to introduce at trial, and any objections thereto;
IT
IS FURTHER ORDERED that no later than March 27,
2019, the parties must jointly submit a Notice of Filing
Lt. Tomory's Deposition Transcript, which must include:
1. By page and line number, the portions of deposition that
either party intends to offer at trial,
2. All objections to the offered portions of the deposition,
which shall identify by page and line number the portion to
which objection is made and shall state the grounds of
objection specifically;
3. All responses to those stated objections. No. replies will
be ...