Castellanos et al v. State of California et al

Filing 90

ORDER RESOLVING 88 Letter Brief. Signed by Judge JEFFREY S. WHITE on 6/10/16. (jjoS, COURT STAFF) (Filed on 6/10/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDIN S. CASTELLANOS,

Case No. 15-cv-00272-JSW

Plaintiff,

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ORDER RESOLVING LETTER BRIEF

v.

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Re: Dkt. No. 88
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JEREMY J. MAYA,
Defendant.

United States District Court
Northern District of California

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The Court has received the parties’ joint letter brief, in which Plaintiff seeks to depose a

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fact witness, Rosario Galvez (“Ms. Galvez”), after the close of discovery. For the reasons set forth

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in this Order, the Court denies Plaintiff’s request. It is undisputed that under the scheduling order

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issued by this Court, fact discovery closed on January 26, 2016. If the Court construes this as a

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“discovery” deposition, Plaintiff would be required to show good cause to take the discovery out

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of time. Fed. R. Civ. P. 16(b)(4).

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However, depositions also may be used for non-discovery purposes.1 Rule 32 permits a

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party to use a deposition of a witness for any purpose, if a court finds, inter alia, the witness “is

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more than 100 miles from the place of hearing or trial or is outside the United States, unless it

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appears that the witness’s absence was procured by the party offering the deposition” or finds “on

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motion and notice, that exceptional circumstances make it desirable--in the interest of justice and

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with due regard to the importance of live testimony in open court--to permit the deposition to be

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The Federal Rules of Civil Procedure do not distinguish between depositions taken for
purpose of discovery and depositions taken to preserve testimony for trial. See, e.g.. Integra
Lifescienes I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 558 (S.D. Cal. 1999). However, some courts
have made distinctions between these two types of depositions. See, e.g. Mathews v. Denver
Newspaper Agency, LLP, No. 07-cv-02907-WDM-KLM, 2010 WL 112819, at *1 (N.D. Cal. Jan.
15, 2009) (citing cases).

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used.” Fed. R. Civ. P. 32(b)(4)(B), (E).
At issue in the parties’ letter brief is whether Plaintiff should be permitted to depose Ms.
Galvez to obtain testimony about when he began to experience neck pain that he claims is a result

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of the incident that gives rise to this dispute. Fact discovery closed in this case on January 26,

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2016. According to Plaintiff, although he identified Ms. Galvez in his initial disclosures, counsel

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did not interview her until early May 2016. Plaintiff also states that Ms. Galvez is scheduled to

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leave the country on June 20, 2016, and will be out of the country at the time of trial. Plaintiff

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claims he was not aware of the significance of Ms. Galvez’ testimony until after he received

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Defendant’s medical expert report, in April 2016. Defendant’s expert has opined that Plaintiff’s

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medical records show that his neck pain did not begin until approximately three weeks after the

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United States District Court
Northern District of California

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incident, which he opines is too remote to conclude the incident caused the pain.

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Although Plaintiff identified Ms. Galvez in his initial disclosures, Defendant did not seek

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to depose her because Plaintiff stated that Ms. Galvez would “attest to Plaintiffs’ mental/emotional

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pain and suffering,” rather than physical pain. (Letter Brief at 8, and Def. Ex. A (Plaintiff’s Initial

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Disclosures).) Defendant argues that Plaintiff has not established good cause to take the

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deposition out of time and argues that he would be prejudiced by this testimony, because it could

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require him to obtain a further report from his expert. Plaintiff contends that if Ms. Galvez was

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not leaving the country, he would be calling her as a witness at trial and, thus, Defendant would

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not be prejudiced. Defendant has responded by arguing that he would object to her testimony at

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trial on the basis that it is hearsay, cumulative, irrelevant, and more prejudicial than probative.

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First, the Court finds that Plaintiff has not shown good cause to take the deposition after

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the discovery cut-off date. Based on Plaintiff’s statement, Plaintiff did not even interview Ms.

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Galvez until May 2016. Thus, he has not shown any measure of diligence in seeking to determine

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the nature or substance of her testimony during the time the discovery period was open. In

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addition, the Court does not find persuasive Plaintiff’s argument about what he intended the

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phrasing of his initial disclosures to mean. The Court agrees with Defendant that the initial

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disclosure would not clearly have put defendant on notice that Ms. Galvez might have had relevant

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information about Plaintiff’s physical injuries.
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Second although th Court recognizes that a deposition may be use as a vehic to
d,
he
t
n
ed
cle

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pre
eserve testim
mony for trial at this poin Ms. Galve is not bey
l,
nt
ez
yond the subpoena powe of the
er

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Court. In addit
tion, as set forth above, Plaintiff has not shown t he was diligent in se
f
P
s
that
eeking to

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det
termine wha her actual testimony would be. Al
at
t
w
lthough Plain may no have procu
ntiff
ot
ured her

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una
availability, if he had int
terviewed he before Ma of this yea he could have taken s
er
ay
ar,
steps to

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ens
sure she wou be availa for trial.
uld
able
.

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In addit
tion the Cou concludes that Plainti has not sh
urt
s
iff
hown that “e
exceptional
circ
cumstances” exist that would warran taking the deposition. Plaintiff’s initial disclo
”
w
nt
e
osures did

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not adequately put Defenda on notice that Ms. G
t
ant
e
Galvez had th informati
his
ion, which de
eprived

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De
efendant of th opportuni to take he deposition during the time fact discovery was open.
he
ity
er
n
s

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United States District Court
Northern District of California

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Thu Defendant also was deprived of the opportun to present this oppor
us,
d
t
nity
rtunity to his expert.
s

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The Court agre with Def
ees
fendant that this testimon would be cumulative and seems l
t
ny
likely to

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con
nsist of inadm
missible hea
arsay. Plaint can testif as to when his neck pain began, a Plaintiff
tiff
fy
n
and

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has attached do
s
ocuments tha he argues corroborates that testim
at
s
mony. Thus, the Court ca
annot say it

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wo
ould be depri
iving Plaintiff of the only potential w
y
witness who could testify to this issu
y
ue.

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Accord
dingly, Plaint
tiff’s request to depose M Galvez i DENIED.
t
Ms.
is

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IT IS SO ORDER
S
RED.

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Da
ated: June 10 2016
0,
___
__________
___________
__________
________
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge

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