RMH Tech LLC et al v. PMC Industries, Inc.

Filing 176

ORDER on Caroll Marston. For the reasons stated in the attached order, the Court exercises its inherent authority to ensure the expeditious resolution of this case, Dietz v. Bouldin, 136 S. Ct. 1885, 1889 (2016), and grants RMH and MRI leave to take Mr. Marston's deposition before the upcoming trial. Signed by Judge Victor A. Bolden on 10/17/2018. (Baran, Hugh)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RMH TECH LLC, a Colorado limited
liability company, and METAL ROOF
INNOVATIONS, LTD., a Colorado
corporation,
Plaintiffs,

No. 3:18-cv-543 (VAB)

v.
PMC INDUSTRIES, INC., a Connecticut
corporation,
Defendant(s).

ORDER ON TESTIMONY OF CAROLL MARSTON
RMH Tech LLC and Metal Roof Innovations, Ltd. (“Plaintiffs” or “RMH and MRI”)
have sued PMC Industries, Inc. (“Defendant” or “PMC”), alleging patent infringement. PMC
asserts two counterclaims seeking a declaratory judgment of non-infringement or invalidity.
In a supplemental joint pretrial memorandum, RMH and MRI seek permission to offer
the videotaped deposition testimony of Caroll Marston at trial, as Mr. Marston “is no longer
subject to the jurisdiction of the Court and therefore cannot be subpoenaed.” Supplemental Joint
Trial Memorandum, dated Oct. 9, 2018 (“Supp. Mem.”), ECF No. 173, at 2. PMC objects,
arguing that his testimony is no longer relevant to the case. Id. at 2–3. In addition to setting out
their views in the supplemental joint trial memorandum, the parties’ discussed this dispute at
length in a final pretrial conference with the Court on October 11, 2018. Minute Entry, dated
Oct. 11, 2018, ECF No. 175.
Mr. Marston is purportedly unavailable within the meaning of Rule 804 of the Federal
Rules of Evidence and Federal Rule of Civil Procedure 32. See FED. R. EVID. 804(a)(5)(A) (“A
declarant is considered to be unavailable as a witness if the declarant . . . (5) is absent from the

trial or hearing and the statement’s proponent has not been able, by process or other reasonable
means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6) . . . .”); FED. R. CIV. P. 32(a)(4) (“A party may use for any purpose the
deposition of a witness, whether or not a party, if the court finds . . . (B) that the witness is more
than 100 miles from the place of hearing or trial or is outside the United States, unless it appears
that the witness’s absence was procured by the party offering the deposition . . . [or] (D) that the
party offering the deposition could not procure the witness’s attendance by subpoena . . . .”).
While his testimony had previously been secured by deposition, as the Court understands
it, PMC made Mr. Marston available under Federal Rules of Civil Procedure Rule 30(b)(6) on a
limited basis. See FED. R. CIV. P. 30(b)(6) (permitting subpoena of organization and requiring
that named organization to designate “one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf; and it may set out the matters on
which each person designated will testify.”). PMC thus objects to the use of any testimony
beyond the scope of the designated areas of 30(b)(6) testimony.
At the pretrial conference, RMH and MRI proposed an alternative way to procure Mr.
Marston’s testimony: that they be given leave to conduct an additional deposition of Mr. Marston
before the trial. See FED. R. CIV. P. 30(a)(2)(A)(ii) (“A party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule 26(b)(1) and (2): (A) if the parties have
not stipulated to the deposition and . . . (ii) the deponent has already been deposed in the
case . . . .”).
“Unless otherwise limited by court order . . . Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1).
Considering all these factors, the Court agrees that an additional deposition of Mr.
Marston would be appropriate here. In particular, the Court notes that Mr. Marston was, until the
eve of the filing of the joint trial memorandum, expected to be available as a fact witness at trial.
See Supp. Mem. at 2. The Court further notes that the scope of the proposed deposition is
limited, as RMH and MRI asserted at the pretrial conference that they have about fifteen specific
factual questions for Mr. Marston regarding emails that he sent and/or received, and that Mr.
Marston was directly involved in the development of the accused infringing product. The Court
therefore finds that the burden or expense that may be incurred in noticing and holding a
deposition in the days leading up to trial is outweighed by the importance of Mr. Marston’s
testimony in resolving issues at stake in this litigation, and that permitting this discovery is thus
relevant and proportional to the needs of the case.
To the extent that PMC argues that any use of Mr. Marston's 30(b)(6) deposition
testimony would be improper, the Court exercises its inherent authority to ensure the expeditious
resolution of this case, Dietz v. Bouldin, 136 S. Ct. 1885, 1889 (2016), and grants RMH and MRI
leave to take Mr. Marston's deposition before the upcoming trial.
SO ORDERED at Bridgeport, Connecticut, this 17th day of October, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE