Freeman v. Perdue Farms Inc

Filing 52

ORDER DENYING 49 Motion and 50 Amended Motion to Quash. Ordered by Judge Marc Thomas Treadwell on 2/1/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ALONZO FREEMAN,
Plaintiff,
v.
PERDUE FARMS, INC.,
Defendant.

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CIVIL ACTION NO. 5:09-CV-395 (MTT)

ORDER
Before the Court is the Plaintiff’s Amended Motion to Quash (Doc. 50) the
Defendant’s deposition notices. The Court held a hearing on the Plaintiff’s motion
January 31, 2013.
This matter is set for trial beginning March 4, 2013. The Defendant seeks to
depose several out-of-state witnesses by video conference for the purpose of
preserving testimony for use at trial. The depositions are not being taken for the
purpose of discovery. Nevertheless, the Plaintiff contends that the Defendant’s
deposition notices should be quashed because the depositions were not taken during
the discovery period. The Court disagrees and the Plaintiff’s motion is DENIED.
Depositions taken to preserve testimony are not discovery and they are not
subject to the discovery deadlines set in the Parties’ Scheduling Order.1 Nevertheless,
the Plaintiff argues that the Defendant knew of the unavailability of the four witnesses

1

This Court’s standard Rule 16 and 26 Order, which provides instructions for the preparation of the
Parties’ Scheduling Order, makes clear that testimony preservation depositions are not required to be
convened during the discovery period. That Order was not entered here because the case initially was
assigned to Judge Lawson.

during the discovery period and thus was required to convene their depositions before
the expiration of the discovery period. The procedural path of this case illustrates the
fallacy of this argument. After the close of discovery, the Defendant, like almost every
defendant in a Title VII case, moved for summary judgment. The Court granted that
motion. As it turned out, the Eleventh Circuit reversed this Court. Until then, the Parties
had no reason to think that testimony preservation depositions would be necessary.
Yet, the Plaintiff’s argument would require parties to convene testimony
preservation depositions before the filing of dispositive motions, and long before there is
any indication that the case will be tried. Given that few cases, for whatever reason, are
tried, it would make no sense to force the parties to incur the considerable expense of
taking testimony preservation depositions in every case notwithstanding the small
likelihood that the case would be tried. Given this, it is no surprise that, to the
knowledge of this Court, no judge has ever required parties to take the testimony
preservation depositions during the discovery period.
Accordingly, the Plaintiff’s Amended Motion to Quash is DENIED.
SO ORDERED, this 1st day of February, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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