Maguire v. Coltrell et al

Filing 87

ORDER granting 79 Motion for Extension of Time Deadline. The parties shall agree upon a convenient time for the deposition before trial. Signed by Judge David G Campbell on 9/29/2015.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert D. Maguire,

No. CV-14-01255-PHX-DGC
Plaintiff,

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v.

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ORDER

Cathleen A. Coltrell, et al.,

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Defendants.

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Plaintiff Robert Maguire has filed a motion for leave to take a trial deposition of

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witness Brian Maguire. Doc. 79. The motion is fully briefed and no party has sought

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oral argument. The Court will grant the motion.

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The discovery period in this case ended on December 19, 2014. Doc. 11. Trial

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will begin on October 13, 2015. Plaintiff listed Brian Maguire as a witness in the final

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pretrial order (Doc. 73 at 19-20), and has now learned that Brian Maguire must be in

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Singapore on business during the dates of the trial (Doc. 79 at 2). Plaintiff seeks leave to

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conduct a brief telephone deposition to preserve his trial testimony. Defendant argues

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that the deposition should not be permitted because Brian Maguire’s testimony will be

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cumulative and irrelevant and Plaintiff therefore cannot show “compelling circumstances

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that would cause a miscarriage of justice.” Doc. 83 at 4.

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Some courts have distinguished between trial depositions (sometimes referred to

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as de bene esse depositions) and discovery depositions, holding that discovery deadlines

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apply only to discovery depositions. See, e.g., Estenfelder v. Gates Corp., 199 F.R.D.

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351, 355 (D. Colo. 2001). The Court does not agree with these decisions. The Federal

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Rules of Civil Procedure govern deposition practice in federal court, and they make no

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distinction between trial and discovery depositions. As one court has explained:

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The current version of the Federal Rules of Civil Procedure . . .
make no provision or mention whatsoever of depositions de bene esse.
Once an action has been filed, Rules 30 through 32 recognize a
“deposition” as a recorded statement of a party or witness that can be used
by a party for any purpose, whether it be pure discovery, source of
impeachment, or trial testimony for a case in chief. Rule 27, by contrast,
codifies a procedure for obtaining a deposition before litigation ensues to
obtain discovery necessary to ascertain facts for use in a later-filed action.
But other than this unique and rarely-used rule, a “deposition” taken once
an action has commenced has but one meaning and definition: a deposition
as a discovery device under Rule 30.
Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 690 (S.D. Fla. 2014).

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Many other courts agree. See, e.g., Chrysler Int’l Corp. v. Chemaly, 280 F.3d

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1358, 1362 n. 8 (11th Cir. 2002) (“The district court’s identical treatment (for timing

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purposes) of discovery and de bene esse depositions is consistent with the language of the

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Federal Rules of Civil Procedure, which draw no distinction between the two.”); Smith,

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302 F.R.D. at 690; White v. Novartis Pharm. Corp., No. CIVS06-0665 WBS GGH, 2010

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WL 2557198, at *1 (E.D. Cal. June 21, 2010) (“Plaintiff’s assumption that de bene esse

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depositions, essentially trial depositions pursuant to Fed. R. Civ. P 32(a)(4), are not

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governed by scheduling orders is erroneous.”); Integra Lifesciences I, Ltd. v. Merck

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KGaA, 190 F.R.D. 556, 558 (S.D. Cal. 1999) (“The Federal Rules of Civil Procedure do

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not distinguish between depositions taken for discovery purposes and those taken strictly

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to perpetuate testimony for presentation at trial.”); Henkel v. XIM Products, Inc., 133

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F.R.D. 556, 557 (D. Minn. 1991) (“Neither the Rules of Civil Procedure nor the Rules of

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Evidence make any distinction between discovery depositions and depositions for use at

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trial.”).

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Because there is no distinction between trial and discovery depositions, the

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deposition of Brian Maguire is governed by the Court’s case management order and

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should have been taken before December 19, 2014. Rule 16 provides, however, that

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deadlines established in a case management order may be modified “for good cause[.]”

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Fed. R. Civ. P. 16(b)(4). “Good cause” exists when a deadline “cannot reasonably be met

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despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16 Advisory

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Comm. Note (1983 Am.). Thus, “Rule 16(b)’s ‘good cause’ standard primarily considers

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the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232 F.3d

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1271, 1294 (9th Cir. 2000).

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Plaintiff could have deposed Brian Maguire during the discovery period,

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preserving his testimony for trial, but Plaintiff explains that he expected Brian—who is

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his brother—to be available to testify at trial. Plaintiff did not foresee that Brian would

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be required by his business to be in Singapore during the trial.

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Defendant does not argue that Plaintiff failed to act diligently. She argues instead

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that Brian Maguire’s testimony would be cumulative and irrelevant, and that Plaintiff

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therefore cannot show that taking his deposition is required by compelling circumstances

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to avoid manifest injustice.

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The Court concludes that the appropriate test in this case is good cause under

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Rule 16(b)(4). Plaintiff does not seek to modify the final pretrial order, which would be

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permitted “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). Brian Maguire and

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the substance of his proposed testimony were included in the final pretrial order. Doc. 73

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at 19-20. Plaintiff instead seeks to extend the deposition deadline, which requires good

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cause. Fed. R. Civ. P. 16(b)(4). The Court concludes that Brian Maguire’s unexpected

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unavailability satisfies the good cause standard, and will permit the telephone deposition.

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The Court will rule on Defendant’s relevancy and cumulative-evidence objections at trial.

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IT IS ORDERED that Plaintiff’s motion for leave to take a trial deposition of

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Brian Maguire (Doc. 79) is granted. The parties shall agree upon a convenient time for

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the deposition before trial.

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Dated this 29th day of September, 2015.

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