Stewart v. Johnson et al

Filing 107

ORDER DENYING 95 Motion for Leave to Take Depositions for Use at Trial and to Offer Deposition Testimony at Trial. Signed by Judge Lisa G. Wood on 7/23/2021. (JH)

Case 5:18-cv-00037-LGW-BWC Document 107 Filed 07/23/21 Page 1 of 4

In the United States District Court
for the Southern District of Georgia
Waycross Division
CHRISTOPHER BRYAN STEWART,
Plaintiff,

CV 5:18-037

v.
EDWINA JOHNSON, et al.,
Defendants.

ORDER
Before the Court is Plaintiff’s motion for leave to take
depositions for use at trial and to offer deposition testimony at
trial. Dkt. No. 95. Defendants filed a response in opposition
contending, inter alia, that the motion is untimely and would be
prejudicial to Defendants. Dkt. No. 102. For the reasons stated
below, Plaintiff’s motion is DENIED.
Plaintiff moves to reopen discovery for the limited purpose
of deposing Plaintiff’s treating physicians, Dr. Diego EspinosaJeidmann and Dr. Dilip Thomas (hereinafter “the witnesses”), for
use at trial. Dkt. No. 95. In doing so, Plaintiff seeks to use the
witnesses’ depositions as permitted under Federal Rule of Civil

Case 5:18-cv-00037-LGW-BWC Document 107 Filed 07/23/21 Page 2 of 4

Procedure 32(a)(4)(B), which states that a party “may use for any
purpose the deposition of a witness, whether or not a party, if
the court finds . . . that the witness is more than 100 miles from
the place of hearing or trial or is outside the United States.”
Fed. R. Civ. P. 32(a)(4)(B). 1 Plaintiff has not, however, taken
the deposition of either witness, nor has he shown good cause as
is required to reopen discovery.
Under Federal Rule of Civil Procedure 16(b)(4), Plaintiff
must make a viable showing of good cause to justify reopening
discovery. See Tiya v. State Farm Fire & Cas. Co., No. 1:14-CV01314-RGV, 2014 WL 12069849, at *1 (N.D. Ga. Nov. 20, 2014) (“[A]
motion

to

reopen

discovery

.

.

.

ultimately

constitute[s]

a

modification of the . . . Scheduling Order and is evaluated under
Federal Rule of Civil Procedure 16(b).”).
Plaintiff has failed to show good cause for discovery to be
reopened. The parties represented in their joint pretrial order
that discovery was complete on May 5, 2021 and that “all deposition
transcripts have been received.” Dkt. No. 82 at 3. Plaintiff now
moves to reopen discovery two months later to conduct additional
expert

witness

explanation

depositions.

offered

for

Dkt.

failing

No.
to

95.
conduct

Plaintiff’s
the

only

witnesses’

depositions during the discovery period is that Plaintiff recently
Plaintiff submits that both witnesses are located in Augusta, Georgia, which
is approximately 174.2 miles from Waycross, Georgia—where the trial is set to
take place. Dkt. No. 95 at 1.

1

2

Case 5:18-cv-00037-LGW-BWC Document 107 Filed 07/23/21 Page 3 of 4

learned these witnesses are “reluctant to travel to Waycross,
Georgia for trial.” Dkt. No. 95 at 1. A witness’s reluctance to
travel does not demonstrate good cause to reopen discovery. This
is

especially

true

given

that

Plaintiff

may

subpoena

these

witnesses as Rule 45 permits to compel their attendance. See Fed.
R. Civ. P. 45(c)(1)(B)(ii) (“A subpoena may command a person to
attend a trial . . . within the state where the person resides .
. . if the person . . . is commanded to attend a trial and would
not

incur

substantial

justification

fails

to

expense.”).
satisfy

Accordingly,

the

good

cause

Plaintiff’s
standard

for

reopening discovery.
Moreover,
Defendants.
indicated

reopening

Prior

the

to

discovery

the

possibility

would

present

motion,

of

his

need

to

be

prejudicial

Plaintiff
conduct

had

to
not

additional

depositions for use at trial. Indeed, in the joint pretrial order
submitted to the Court, the parties agreed that they “d[id] not
anticipate using deposition testimony other than for impeachment
purposes.” Id. at 12. Furthermore, on July 7, 2021, the Court
conducted

the

pretrial

conference

and

gave

each

party

the

opportunity to state if any witness would be testifying by way of
deposition.

Plaintiff

acknowledges

that,

when

given

the

opportunity at the pretrial conference, he did not alert the Court
of his intent to offer these witnesses’ testimony at trial. Dkt.
No. 95 at 1. Plaintiff had ample time to conduct discovery or, in
3

Case 5:18-cv-00037-LGW-BWC Document 107 Filed 07/23/21 Page 4 of 4

the alternative, to bring this issue to the Court’s attention.
Requiring Defendants’ counsel to now attend the depositions of two
expert witnesses on the eve of trial would be unreasonable and
unduly burdensome. 2
For the reasons stated above, Plaintiff’s motion, dkt. no.
95, is DENIED.
SO ORDERED, this 23rd day of July, 2021.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

Plaintiff suggests these depositions could be taken on July 28, 2021, which
would be less than a week before the trial is set to begin. Dkt. No. 95 at 2.

2

4