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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert D. Maguire, No. CV-14-01255-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Cathleen A. Coltrell, et al., 13 Defendants. 14 15 16 Plaintiff Robert Maguire has filed a motion for leave to take a trial deposition of 17 witness Brian Maguire. Doc. 79. The motion is fully briefed and no party has sought 18 oral argument. The Court will grant the motion. 19 The discovery period in this case ended on December 19, 2014. Doc. 11. Trial 20 will begin on October 13, 2015. Plaintiff listed Brian Maguire as a witness in the final 21 pretrial order (Doc. 73 at 19-20), and has now learned that Brian Maguire must be in 22 Singapore on business during the dates of the trial (Doc. 79 at 2). Plaintiff seeks leave to 23 conduct a brief telephone deposition to preserve his trial testimony. Defendant argues 24 that the deposition should not be permitted because Brian Maguire’s testimony will be 25 cumulative and irrelevant and Plaintiff therefore cannot show “compelling circumstances 26 that would cause a miscarriage of justice.” Doc. 83 at 4. 27 28 1 Some courts have distinguished between trial depositions (sometimes referred to 2 as de bene esse depositions) and discovery depositions, holding that discovery deadlines 3 apply only to discovery depositions. See, e.g., Estenfelder v. Gates Corp., 199 F.R.D. 4 351, 355 (D. Colo. 2001). The Court does not agree with these decisions. The Federal 5 Rules of Civil Procedure govern deposition practice in federal court, and they make no 6 distinction between trial and discovery depositions. As one court has explained: 7 8 9 10 11 12 13 14 15 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). 16 Many other courts agree. See, e.g., Chrysler Int’l Corp. v. Chemaly, 280 F.3d 17 1358, 1362 n. 8 (11th Cir. 2002) (“The district court’s identical treatment (for timing 18 purposes) of discovery and de bene esse depositions is consistent with the language of the 19 Federal Rules of Civil Procedure, which draw no distinction between the two.”); Smith, 20 302 F.R.D. at 690; White v. Novartis Pharm. Corp., No. CIVS06-0665 WBS GGH, 2010 21 WL 2557198, at *1 (E.D. Cal. June 21, 2010) (“Plaintiff’s assumption that de bene esse 22 depositions, essentially trial depositions pursuant to Fed. R. Civ. P 32(a)(4), are not 23 governed by scheduling orders is erroneous.”); Integra Lifesciences I, Ltd. v. Merck 24 KGaA, 190 F.R.D. 556, 558 (S.D. Cal. 1999) (“The Federal Rules of Civil Procedure do 25 not distinguish between depositions taken for discovery purposes and those taken strictly 26 to perpetuate testimony for presentation at trial.”); Henkel v. XIM Products, Inc., 133 27 F.R.D. 556, 557 (D. Minn. 1991) (“Neither the Rules of Civil Procedure nor the Rules of 28 Evidence make any distinction between discovery depositions and depositions for use at -2- 1 trial.”). 2 Because there is no distinction between trial and discovery depositions, the 3 deposition of Brian Maguire is governed by the Court’s case management order and 4 should have been taken before December 19, 2014. Rule 16 provides, however, that 5 deadlines established in a case management order may be modified “for good cause[.]” 6 Fed. R. Civ. P. 16(b)(4). “Good cause” exists when a deadline “cannot reasonably be met 7 despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16 Advisory 8 Comm. Note (1983 Am.). Thus, “Rule 16(b)’s ‘good cause’ standard primarily considers 9 the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 10 Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232 F.3d 11 1271, 1294 (9th Cir. 2000). 12 Plaintiff could have deposed Brian Maguire during the discovery period, 13 preserving his testimony for trial, but Plaintiff explains that he expected Brian—who is 14 his brother—to be available to testify at trial. Plaintiff did not foresee that Brian would 15 be required by his business to be in Singapore during the trial. 16 Defendant does not argue that Plaintiff failed to act diligently. She argues instead 17 that Brian Maguire’s testimony would be cumulative and irrelevant, and that Plaintiff 18 therefore cannot show that taking his deposition is required by compelling circumstances 19 to avoid manifest injustice. 20 The Court concludes that the appropriate test in this case is good cause under 21 Rule 16(b)(4). Plaintiff does not seek to modify the final pretrial order, which would be 22 permitted “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). Brian Maguire and 23 the substance of his proposed testimony were included in the final pretrial order. Doc. 73 24 at 19-20. Plaintiff instead seeks to extend the deposition deadline, which requires good 25 cause. Fed. R. Civ. P. 16(b)(4). The Court concludes that Brian Maguire’s unexpected 26 unavailability satisfies the good cause standard, and will permit the telephone deposition. 27 The Court will rule on Defendant’s relevancy and cumulative-evidence objections at trial. 28 -3- 1 IT IS ORDERED that Plaintiff’s motion for leave to take a trial deposition of 2 Brian Maguire (Doc. 79) is granted. The parties shall agree upon a convenient time for 3 the deposition before trial. 4 Dated this 29th day of September, 2015. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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