Green v. Phoenix, City of

Filing 106

ORDER granting Defendant's 103 Expedited Motion for Trial Deposition of Lt. Joe Tomory. ORDERED the trial deposition must commence on or before 3/20/2019. Counsel for both parties are directed to meet and confer no later than 3/8/2019, to d etermine an appropriate date and time on which to conduct the deposition. IT IS FURTHER ORDERED that no later than 3/27/2019, the parties must jointly submit a Notice of Filing of Lt. Tomory's Deposition Transcript. Signed by Judge Diane J Humetewa on 3/6/2019. (See Order for details.) (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Green,
Plaintiff,

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ORDER

v.

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No. CV-15-02570-PHX-DJH

City of Phoenix,

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Defendant.

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Before the Court is Defendant’s Expedited Motion for Trial Deposition of Lt. Joe

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Tomory (Doc. 103). The Court Ordered an expedited briefing schedule and did not permit

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Defendant to file a Reply. (Doc. 104). In compliance with the Court’s Order, Plaintiff

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filed his Response on March 5, 2019. (Doc. 105).

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Defendant’s Motion requests leave to take a videotaped trial deposition of

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Lt. Tomory pursuant to Federal Rule of Civil Procedure (“Rule”) 32(a)(4)(C) to preserve

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Lt. Tomory’s testimony so that it can be played at trial. (Doc. 103). Trial in this matter is

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scheduled to begin on April 2, 2019, and Defendant provides that Lt. Tomory “is scheduled

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to have back surgery at the end of March” and his estimated recovery time is four weeks.

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(Id.) Defendant further provides that “Lt. Tomory’s back surgery was unexpected and

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unanticipated.” (Id.) In the parties’ Joint Proposed Final Pretrial Order, the parties

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stipulated that Lt. Tomory was one of Plaintiff’s supervisors in the Robbery Unit.

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(Doc. 81 at 4). Additionally, Defendant listed Lt. Tomory as a fact witness that it intended

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to call at trial and listed several exhibits authored by Lt. Tomory that it intended to

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introduce at trial. (Id. at 17, 13, 22). Plaintiff opposed Defendant’s Motion, arguing that

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fact discovery has closed and that allowing the deposition of Lt. Tomory is highly

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prejudicial. (Doc. 105). Plaintiff, however, fails to specifically explain how he would be

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prejudiced. (Id.)

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The Court has found no Ninth Circuit authority addressing whether the type of trial

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deposition that Defendant seeks is a “discovery” deposition subject to the limits in the

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Rules or a deposition that is exempt from those strictures. Authority from other district

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courts is scant and conflicting. Compare Integra Lifesciences I, Ltd. v. Merck KgaA, 190

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F.R.D. 556, 558 (S.D. Cal. 1999) (“Based upon the lack of distinction in the Federal Rules

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between trial and discovery depositions, it has been held that there is no difference between

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the two, and that if a party wishes to introduce deposition testimony at trial, that testimony

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should procured [sic] during the time set by the court to conduct discovery absent

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exceptional circumstances.”), with Estenfelder v. Gates Corp., 199 F.R.D. 351, 356

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(D. Colo. 2001) (finding that the depositions were to preserve testimony were not

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constrained by the court’s scheduling order). However, the Court finds the reasoning in

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the cases which hold that these so-called “trial depositions” are subject to the limits in the

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Rules to be the most persuasive.

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Kilroy, P.S., 2006 WL 2401245, at *7 (D. Ariz. 2006) (finding there is no distinction in the

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Rules between trial and discovery depositions; thus, the court denied plaintiff’s motion to

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conduct additional depositions when the only proffered reason was judicial economy and

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reduction of trial expenses); see also Perez v. Jie, 2015 WL 11234149, at *2 (W.D. Wash.

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Feb. 3, 2015) (finding that the trial depositions plaintiff sought to take were subject to the

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discovery deadline set forth in the court’s scheduling order; thus, the court considered

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whether good cause existed to modify that deadline).

Energex Enterprises, Inc. v. Shughart, Thomson &

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Having determined that the trial deposition Defendant seeks is subject to the

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discovery deadline set forth in the Court’s Scheduling Order, the Court now considers

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whether good cause exists to modify this deadline to permit the deposition of Lt. Tomory.

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Fed. R. Civ. P. 16(b)(4). Rule 16(b)’s “good cause” standard primarily considers the

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diligence of the party seeking the modification; the district court may modify the pretrial

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schedule “if it cannot reasonably be met despite the diligence of the party seeking the

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extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

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(citation omitted); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88

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(9th Cir. 2002) (good cause not shown where plaintiff had failed to “demonstrate diligence

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in complying with the dates set by the district court”).

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Here, the Court notes that Lt. Tomory’s back surgery was unexpected and

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unanticipated and as discovery in this case closed nearly two years ago, on March 17, 2017,

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Defendant would have been unable to anticipate Lt. Tomory’s unavailability for trial prior

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to the close of discovery. Thus, the Court finds that good cause exits to allow Defendant

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to take a trial deposition of Lt. Tomory. See Perez, 2015 WL 11234149, at *2 (finding that

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there was good cause to allow plaintiff to depose two witnesses that were available for the

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original trial date but unavailable for amended trial date).

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Accordingly,

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IT IS ORDERED that Defendant’s Expedited Motion for Trial Deposition of Lt.

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Joe Tomory (Doc. 103) is GRANTED;

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IT IS FURTHER ORDERED that the trial deposition of Lt. Joe Tomory must

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commence on or before March 20, 2019, the deposition is limited to three (3) hours per

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party, and the scope of the deposition is limited to Lt. Tomory’s “interactions with and

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observations of Plaintiff during Plaintiff’s tenure with the PPD Robbery Unit.” Counsel

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for both parties are directed to meet and confer no later than March 8, 2019, to determine

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an appropriate date and time on which to conduct the deposition of Lt. Joe Tomory;

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IT IS FURTHER ORDERED that the parties must meet and confer no later than

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March 25, 2019, regarding the portions of the Lt. Tomory’s deposition that either party

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intends to introduce at trial, and any objections thereto;

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IT IS FURTHER ORDERED that no later than March 27, 2019, the parties must

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jointly submit a Notice of Filing Lt. Tomory’s Deposition Transcript, which must include:

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By page and line number, the portions of deposition that either party intends

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to offer at trial,

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All objections to the offered portions of the deposition, which shall identify

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by page and line number the portion to which objection is made and shall state the grounds

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of objection specifically;

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All responses to those stated objections. No replies will be permitted; and

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Lt. Tomory’s entire deposition transcript as an attachment.

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IT IS FINALLY ORDERED affirming all other pretrial and trial deadlines.

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Dated this 6th day of March, 2019.

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Honorable Diane J. Humetewa
United States District Judge

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