Winberly Jr. v. Broome et al

Filing 121

ORDER granting 119 Motion to Approve Plaintiff's Access to Evidentiary Deposition by Remote Means. Signed by Magistrate Judge R. Stan Baker on 8/15/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

LEONARD WIMBERLY, JR.,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-23

v.
DEAN BROOME; GAIL FERRA; and
MARTHA MIDDLETON,
Defendants.

ORDER
This matter comes before the Court on Defendant Ferra’s Notice of Videotaped
Deposition of Kathryn Wild, (the “Notice”), (doc. 118), and Defendant Ferra’s Emergency
Motion to Approve Plaintiff’s Access to Evidentiary Deposition by Remote Means, (the
“Motion”), (doc. 119). Defendant Ferra explains she is “securing the out-of-state evidentiary
deposition of her expert [Ms. Wild] in order to preserve the expert’s testimony for use of trial”
because Ms. Wild “is unavailable to appear” for the trial that begins on September 25, 2018.
(Doc. 119, pp. 1–2.)
Defendant Ferra references her most recent motion for continuance, (doc. 112), wherein
she explained Ms. Wild will be in Australia from September 19 through October 8, 2018.
(See Doc. 119, p. 1; Doc. 112.) Defendant Ferra does not state the purpose of Ms. Wild’s travel
to Australia. (See Docs. 112, 118, 119.) Further, the Court previously accommodated Ms.
Wild’s travel plans when it granted Defendant Ferra’s initial request for continuance of the
pretrial conference and trial so Ms. Wild could take “a cruise in the Mediterranean” from June
11–25, 2018. (See Docs. 95, 100.)

“[P]arties who delay in taking a needed deposition and who assume that a district court
will draw (when the [Federal Rules of Civil Procedure] do not and if the pretrial order does not)
a distinction, for pretrial scheduling purposes, between different kinds of depositions [i.e.,
between a discovery deposition and a trial deposition] assume a risk: they cannot count on the
trial court’s allowing a deposition to be taken closer to the trial date.” Chrysler Int’l Corp. v.
Chemaly, 280 F.3d 1358, 1362 n.8 (11th Cir. 2002).
Here, the discovery period closed more than one year ago, and defense counsel
previously represented Ms. Wild would be available for the upcoming trial. (Doc. 54, p. 8;
Doc. 95, p. 2.) Additionally, Defendant Ferra delayed approximately four weeks from denial of
her most recent motion to continue before filing the Notice and Motion. While the Court could
deny the motion outright for these reasons, it prefers a full adjudication on the merits and thus
GRANTS the Motion, (doc. 119), subject to the following conditions.
Ms. Wild may testify live at trial by contemporaneous video and audio transmission from
Australia, i.e., by live video conference. In the alternative, Ms. Wild may sit for a deposition in
advance of trial at the United States District Court located at 600 James Brown Boulevard,
Augusta, Georgia 30901. Ms. Wild may attend this deposition by video conference. 1 With
respect to both options, Defendant Ferra assumes all burdens and risks including but not limited
to Ms. Wild being unable to testify because of any technological difficulties. The Court shall not
grant a continuance based upon Ms. Wild being unable to testify for any reason. See Local R.
40.2 (S.D. Ga.).
On or before 2:00 p.m. tomorrow, August 16, 2018, Defendant Ferra shall file a notice
with the Court specifying which of the two above options she has elected. For the deposition
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Unless the parties stipulate otherwise, Plaintiff and Defendants (and/or their respective counsel) must
attend this deposition in person at the aforementioned courthouse.
2

option, Defendant Ferra shall also, by this same deadline: (1) file a deposition notice specifying
the date and time of the deposition; and (2) contact the Court’s Department of Computer
Services (“DCS”) in Augusta to provide all information necessary to establish the video
conferencing link. The Court shall make arrangements for Plaintiff’s transport to the Court for
the deposition.
The courthouse is equipped with video conferencing equipment. However, Defendant
Ferra is responsible for securing a court reporter and a means to record the audio and video of the
deposition for playback at trial.

If Defendant Ferra chooses the first option of the expert

testifying live at trial by video conference, she will be responsible for making all necessary
arrangements and coordinating with the Court’s DCS.
SO ORDERED, this 15th day of August, 2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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