McDonald v. Campbell, et al

Filing 186

ORDER signed by Senior Judge Robert J. Timlin on 9/1/2011 GRANTING 179 Motion for Leave to Conduct a Video Deposition of Witness David Swaney. (Zignago, K.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Sacramento Division
CIVIL MINUTES - GENERAL
Case No.

2:06-2404-RT

Date September 1, 2011

Title:

Jeffrey McDonald v. Roseanne Campbell, et al.

PRESENT:
THE HONORABLE ROBERT J. TIMLIN, JUDGE
Patricia Gomez
Courtroom Clerk
ATTORNEYS PRESENT FOR PLAINTIFFS:
None

None
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANTS:
None

PROCEEDINGS: ORDER GRANTING DEFENDANT BAKER’S MOTION FOR
LEAVE OF COURT TO CONDUCT A VIDEO DEPOSITION TO BE USED AT TRIAL
IN LIEU OF LIVE TESTIMONY (IN CHAMBERS)
The court has read and considered Defendant Baker’s motion for leave of court to conduct a
video deposition to be used at trial in lieu of live testimony filed August 5, 2011 (“motion”), Plaintiff
McDonald’s opposition to that motion filed August 18, 2011, and Defendant Baker’s reply filed August
29, 2011. The court will grant Defendant Baker’s motion.
The court finds that Defendant Baker has established the existence of “exceptional
circumstances” under Federal Rules of Civil Procedure, Rule 32(a)(4)(E) to require a video deposition
be taken of witness David Swaney to be used a trial in lieu of his live testimony. As Defendant Baker
has stated in his moving papers and the declaration of David Swaney attached thereto, the witness will
be out of the country on a pre-paid vacation to South Africa during the time of the trial.1 Because of the
current lack of availability of courtrooms in the courthouse for the Sacramento Division of the Eastern
District of California, this trial must proceed on the date it is currently scheduled in the Sacramento
Division, or this court will have to move the trial to the Central District of California, Los Angeles for it
to be able to go to trial in a timely fashion. Defendant Baker’s witnesses (many of whom are doctors
and nurses), and their employer, the state prison system, will suffer the attendant increase in financial
expense and the loss of medical providers in the overpopulated California prison system for a longer
period of time, if these witnesses are required to come to Los Angeles to testify. Further, the court

1

Mr. Swaney will not be in the USA from October 3 to October 20, 2011. The parties
estimate the trial will conclude on or about October 11, 2011.

finds Plaintiff McDonald’s objections to be without merit, as Defendant Baker has agreed that Plaintiff
McDonald will be given the opportunity to conduct a proper cross-examination during the deposition
and to make objections to the admissibility of Mr. Swaney’s testimony. The court will rule on those
objections before the video of Mr. Swaney’s testimony is played to the jury.
IT IS HEREBY ORDERED that Defendant Baker is granted leave to conduct a video deposition
of witness David Swaney to be used at trial in this case. Plaintiff McDonald must be present at the
deposition, either in person or via videoconference, and be afforded the opportunity to cross-examine
the witness and make evidentiary objections.
IT IS SO ORDERED.
CIVIL MINUTES

INITIALS OF CRD _____