Coface Collections North America Inc. v. Newton

Filing 223

MEMORANDUM ORDER granting re 217 MOTION for Leave to Take De Bene Esse Depositions of Witnesses Unavailable for Trial filed by William J. Newton. Signed by Judge Leonard P. Stark on 12/28/2012. (rpg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COFACE COLLECTIONS NORTH
AMERICA, INC.,
Plaintiff,
C.A. No. 11-52-LPS

v.
WILLIAM J. NEWTON,
Defendant.

MEMORANDUM ORDER
Pending before the Court is Defendant's Motion For Leave To Take De Bene Esse
Depositions. (D.I. 217)
1.

This action was instituted by Plaintiff to enforce a restrictive covenant contained

in an Asset Purchase Agreement between the parties for the sale of a debt collection business.
2.

In addition to other claims, Plaintiff seeks compensation for losses sustained due

to multiple employees leaving Plaintiff, purportedly at the impetus of Defendant. (D.I. 44 ~ 34)
Those employees are Harold J. Ernest, Mary Ellen Jacques, Theresa Janae Lauricella, John
William Watson, and Corries Marie Landry (collectively, the "Former Coface Employees").
(D .I. 21 7 ~ 2 at 1)
3.

In response to Plaintiffs Motion for Summary Judgment, Defendant produced

affidavits from each of the Former Co face Employees, indicating that each left Co face's
employment because of dissatisfaction with Plaintiff rather than solicitation by Defendant. (D.I.
164 Ex. A-483-97)
4.

Defendant now, after the close of discovery, seeks leave to take de bene esse

depositions 1 ofthe Former Coface Employees because they are all beyond the Court's subpoena
powers2 and each has indicated that they will be unable to attend the trial. (D.I. 217 Ex. B)
Plaintiff opposes Defendant's motion on the grounds that discovery has closed, the decision not
to take these depositions during discovery was a tactical decision on the part of Defendant, and
the information sought is irrelevant. (D.I. 220) 3
5.

While the Federal Rules of Civil Procedure make no distinction between

depositions taken for discovery and depositions taken for trial purposes, see Fed. R. Civ. Proc.
32, many courts have recognized such a distinction and held that the latter (i.e., de bene esse
depositions, "preservation depositions," or "trial depositions") may be taken after the close of
discovery. See, e.g., Charles v. Wade, 665 F2d 661, 664 (5th Cir. 1982) ("Although the
discovery period had indeed closed ... the requested deposition would not have been taken for
purposes of discovery but as the testimony of a witness unavailable for trial. . . . The distinction
is a valid one."); Chrysler Int'l Corp. v. Chemaly, 280 F. 3d 1358, 1362 (11th Cir. 2002) ("In
allowing or disallowing a deposition to be taken for use at trial ... the district court can make
that time limit the same as the time limit for discovery depositions."); RLS Assoc., LLC v. United

Bank of Kuwait PLC, 2005 WL 578917, at *6-8 (S.D.N.Y. Mar. 11, 2005); but see George v.

1

De bene esse depositions are not listed in the Federal Rules of Civil Procedure but are
understood by courts to mean depositions that will be used to preserve testimony for trial rather
than to discover new information. See Estenfelder v. Gates Corp., 199 F.R.D. 351,354 (D. Colo.
2001) ("[I]f a party can present the testimony of a witness only by means of a deposition, the
taking of that deposition would be for a different purpose than the taking of a discovery
deposition .... ") (citing Charles v. Wade, 665 F.2d 661, 664 (5th Cir. 1982)). De bene esse
depositions are sometimes referred to as "preservation depositions" or "trial depositions."
2

All of the Former Coface Employees reside more than 100 miles from this courthouse.
(D.I. 217 ,-r 8 at 3; see also Fed. R. Civ. Proc. 45(c)(3)(A)(ii))
3

As the Court has stated previously, the Court views the testimony of the Former Coface
Employees to be relevant. (See D.l. 199 (May 17, 2012 Hearing Tr.) at 6)

Ford Motor Co., 2007 WL 2398806, at *12 (S.D.N.Y. Aug. 17, 2007) ("[B]oth discovery and de
bene esse depositions are governed by the scheduling order set by the Court, and may not be
conducted after the close of discovery absent good cause to modify that order.") (internal
quotation marks omitted).
6.

Factors to be considered in granting a de bene esse deposition after the close of

discovery are: the unavailability of the witness to appear at trial; whether the deposing party
knew of the information the potential witness would testify to prior to the deposition; and
whether the opposing party will be prejudiced by granting the deposition - with special attention
given to the question of prejudice. See Estate of Gee v. Bloomington Hasp. & Health Care Sys.,
Inc., 2012 WL 729269, at *6 (S.D. Ind. Mar. 6, 2012). Applying these factors here results in the
conclusion that Defendant should be permitted leave to conduct de bene esse depositions of the
Former Coface Employees.
7.

The Former Coface Employees are not available for trial. They are all beyond the

subpoena power ofthe Court, and they have all indicated that they will be unable to make the
long trip from their respective homes to this courthouse.
8.

The testimony Defendant seeks to preserve as to the reasons the Former Coface

Employees left Plaintiffhas been known by Defendant since September 2011 and by Plaintiff
since shortly thereafter. (See, e.g., D.I. 164 Ex. A-483-97 (Plaintiff's Motion for Summary
Judgment, attaching affidavits of Former Coface Employees))
9.

Plaintiff will not be prejudiced by these depositions. Plaintiff will be in no worse

position than it would have been had the Former Coface Employees testified at trial. Also,
Plaintiff is already privy to the substance of the witness testimony that Defendant intends to
preserve. Moreover, the trial date is several months away, providing adequate time to conduct

the depositions without handicapping either party in its trial preparation.
10.

Alternatively, to the extent Defendant's have to show good cause to modify the

Scheduling Order to permit the post-discovery de bene esse depositions, they have done so, for
the same reasons already described above.
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that:
1.

Defendant's request for leave to take de bene esse depositions of the Former

Coface Employees (D.I. 217) is GRANTED. Defendant shall take the depositions no later than
February 8, 2013.
2.

Plaintiffs request that Defendant pay all Plaintiffs costs and attorney's fees

associated with preparing for and attending depositions herein ordered (D.I. 220) is DENIED.

December 28, 2012