Garcia v. MAKO Surgical Corp. et al

Filing 70

ORDER GRANTING DEFENDANT'S 53 MOTION TO STRIKE VIDEO DEPOSITION. Signed by Magistrate Judge Alicia O. Valle on 8/25/2014. (ms01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
Case No. 13-cv-61361-CIV-BLOOM/VALLE
TAMMY GARCIA, an individual,
Plaintiff,
v.
MAKO SURGICAL CORP.,
a Delaware Corporation,
Defendant.
________________________________
ORDER GRANTING DEFENDANT’S MOTION TO STRIKE VIDEO DEPOSITION
THIS MATTER is before the Court on Defendant MAKO Surgical Corp.’s (“MAKO”)
motion to strike the March 4, 2014 videotaped deposition of Dr. Maurice Ferré (the “Motion to
Strike”) (ECF No. 53). All discovery matters in this case have been referred to the undersigned
by United States District Judge Beth Bloom. See (ECF No. 51). The Court has reviewed the
Motion to Strike, Plaintiff’s Response (ECF No. 66), 1 and MAKO’s Reply (ECF No. 68), and is
fully advised in the premises. Accordingly, it is hereby ORDERED AND ADJUDGED that
Defendant’s Motion to Strike is GRANTED for the reasons set forth below.
I.

BACKGROUND

This lawsuit concerns Plaintiff’s allegations that she was terminated by MAKO due to
her age and gender, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a)(1)
and (2), and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). MAKO was a

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The Court provided notice to the parties regarding the undersigned’s discovery procedures and
the requirement that parties respond to discovery-related motions within seven days. See (ECF
No. 57). Despite this explicit instruction, Plaintiff responded to the Motion 17 days after the
Motion was filed. Although the Court has reviewed and considered Plaintiff’s response, the
parties are expected to follow all pre-trial deadlines and procedures.

publicly traded medical technology company that developed and sold medical equipment for use
during surgeries, such as the Robotic Arm Interactive Orthopedic System, or RIO. See (ECF No.
33, ¶ 2). The company was sold to the Stryker Corporation in December 2013. Id. Before her
employment termination, Plaintiff was the Senior Director of RIO Sales and responsible for the
sale of RIOs at MAKO. Id. at ¶¶ 5, 29. The Chief Executive Officer for MAKO at the time that
Plaintiff’s employment was terminated was Dr. Maurice Ferré.
On December 12, 2013, Plaintiff served MAKO with a Notice of Taking Deposition of
Dr. Ferré. See (ECF No. 53-1). A first amended notice was served on January 15, 2014
(ECF No. 53-2), and a second amended notice was served on February 25, 2014 (ECF No. 53-3).
Pursuant to the second amended notice of deposition, Dr. Ferré was deposed by Plaintiff on
March 4, 2014 and the deposition was recorded by videotape.
In the instant Motion, MAKO argues that the videotaped portion of the March 4, 2014
deposition of Dr. Ferré should be stricken because Plaintiff never notified MAKO that a video
recording would be created, which violates Federal Rule of Civil Procedure 30(b)(3)(B). See
(ECF No. 53 at 1). MAKO does not request to exclude Dr. Ferré’s testimony in its entirety, only
the video recording of such testimony, thus permitting Plaintiff to present the written transcript
of the deposition at trial. (ECF No. 68 at 2).
Plaintiff admits that the second amended notice inadvertently failed to state that the
deposition would be recorded by video. (ECF No. 66 at 3). Plaintiff argues, however, that
MAKO has not shown any prejudice due to the lack of notice, and therefore argues that the
videotaped deposition should not be stricken. Id. at 4-5. Plaintiff further asserts that the
videotape provides telling evidence as Dr. Ferré sat “in complete silence for a full minute in
response to a question regarding why Plaintiff was treated differently from her male

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comparator.” Id. at 2. According to Plaintiff, this silence would not be evident on a written
transcript. Id.
II.

LEGAL ANALYSIS

The Federal Rules of Civil Procedure govern all civil actions in the United States district
courts. Fed. R. Civ. P. 1. The rules are construed and administered “to secure the just, speedy,
and inexpensive determination of every action and proceeding.” Id. The rules are further
designed “to avoid surprise and thus to facilitate a proper ruling on the merits of each case.”
Combee v. Shell Oil Co., 615 F.2d 698, 701 (5th Cir. 1980); 2 see also Gulf Grp. Holdings, Inc. v.
Coast Asset Mgmt. Corp., 516 F. Supp. 2d 1253, 1265 (S.D. Fla. 2007) (Torres, Mag. J.) (noting
that procedural rules “are designed to assist in case management and to prevent prejudice to
litigants”).
Federal Rule of Civil Procedure 30(b)(3) sets forth the procedure for recording a
deposition by videotape. The Rule provides:
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the deposition must state
in the notice the method for recording the testimony. Unless the court orders
otherwise, testimony may be recorded by audio, audiovisual, or stenographic
means. The noticing party bears the recording costs. Any party may arrange to
transcribe a deposition.
(B) Additional Method. With prior notice to the deponent and other parties, any
party may designate another method for recording the testimony in addition to
that specified in the original notice. That party bears the expense of the additional
record or transcript unless the court orders otherwise.
Fed. R. Civ. P. 30(b)(3)(A)-(B) (emphasis in original). In addition to Federal Rule 30(b)(3), the
Local Rules for the Southern District of Florida require a party who seeks to record a deposition
2

Decisions by the former Fifth Circuit issued before October 1, 1981 are binding precedent in
the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.1981)
(en banc).

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to provide notice to the deponent and other parties. See S.D. Fla. L.R. App. II.D (“With prior
notice to the deponent and other parties, any party may designate another method to record the
deponent’s testimony in addition to the method specified by the person taking the deposition and
the notice or cross-notice of deposition shall state the method by which the testimony shall be
recorded. See Federal Rule of Civil Procedure 30(b)(3).”).
Here, Dr. Ferré was first alerted that his deposition would be videotaped when he
appeared for the deposition and saw video equipment and a videographer present. (ECF No. 53
at 4).

Over MAKO’s objection, Plaintiff proceeded with the deposition.

Id. at 5.

It is

undisputed, however, that the second amended notice of deposition, like the amended notice of
deposition and the original notice of deposition, failed to notify Dr. Ferré or MAKO that Plaintiff
would record Dr. Ferré’s deposition by videotape. See (ECF Nos. 53-1; 53-2; 53-3). Plaintiff
claims this omission was a typographical error. See (ECF No. 66 at 2).

Regardless of how

Plaintiff characterizes the omission, however, the second amended notice failed to comply with
the Federal Rules of Civil Procedure and the Local Rules for the Southern District of Florida. In
contrast, Plaintiff has followed the rules on other occasions in this case, properly notifying
deponents Ivan Delevic and Fritz LaPorte that their depositions would be videotaped. See (ECF
Nos. 53-5; 53-6).
Regardless of whether Plaintiff’s omission was inadvertent or had some other nefarious
purpose, MAKO and the deponent clearly were not on notice that the deposition would be
videotaped. The Federal Rules of Civil Procedure are designed, in part, to avoid surprise. Thus,
the Court will strike the video portion of the deposition and permit the written transcript to be
read or otherwise presented to the jury. See Porto Venezia Condo. Ass’n, Inc. v. WB Fort
Lauderdale, LLC, 11-60665-CIV, 2012 WL 2339703, at *3 (S.D. Fla. June 14, 2012) (noting
that, pursuant to Rule 30(b), all parties are “entitled to advance notice if the deposition is to be
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videotaped”); Woods v. G.B. Cooley Hosp. Serv. Dist., 07-CV-0926, 2009 WL 151078, at *3
(W.D. La. Jan. 21, 2009) (determining that videotape from deposition could not be allowed into
evidence because oral notification minutes prior to a deposition that it would be videotaped did
not cure failure to comply with Rule 30(b)(3)).
III.

CONCLUSION

For these reasons, Defendant’s Motion to Strike the video portion of Dr. Ferré’s
deposition is GRANTED. The parties may use the written transcript of Dr. Ferré’s deposition,
but any video recording taken from the deposition may not be shown to the jury.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on August 25, 2014.

_________________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable Beth Bloom
All Counsel of Record

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