Joseph v. Robrahn

Filing 59

ORDER re 56 Objection filed by David Joseph - Plaintiff's Objection to Defendant's use of his deposition testimony at trial (Dkt. 56) is SUSTAINED.Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID JOSEPH,
Case No. 1:13-cv-00428-CWD
Plaintiff,
ORDER RE: OBJECTION TO
DEPOSITION TESTIMONY OF
DEFENDANT

v.
DAVID ROBRAHN,
Defendant.

The issue presented to the court on the eve of trial is whether Defendant David
Robrahn may offer his own deposition testimony into evidence in lieu of in-person
testimony at the time of trial. Plaintiff objects to such use of Defendant's deposition
testimony. (Dkt. 56.) 1 After reviewing the parties’ submissions on the issue (Dkt. 56,
58), the record of this action, and the applicable law, the Court will sustain the objection.
Plaintiff deposed Defendant on March 10, 2014, during the discovery period. Mr.
Robrahn indicated he resided in Ketchum, Idaho. Presently, Robrahn is in Australia, and
has been there since January of 2015. The first any participant in this matter, including
the Court, knew Robrahn would not appear for trial was during the pretrial conference,
held on July 21, 2015.
1

The Court will determine the matter without oral argument, as the issue is adequately presented
in the written submissions, and trial commences at 9:30 a.m. on Monday, August 3, 2015. Dist. Idaho L.
Rule 7.1(d).

ORDER - 1

Although Defendant sets forth examples of situations where recorded testimony is
allowable in lieu of live testimony at the time of trial under Fed. R. Civ. P. 32 and the
rules of evidence, 2 the circumstances of the proffer here do not fit among those situations.
There is a burden of establishing “unavailability” that Defendant fails to meet. United
States v. Dick Pacific/Ghemm Joint Venture, No. A03–290–CV(JWS), 2005 WL 3047864
(D. Alaska Nov. 10, 2005) (“In any federal trial court a party cannot offer its own
witness’ substantive testimony by deposition unless the witness is dead or otherwise
unavailable within the meaning of Rule 32(a)(3)”); Garcia-Martinez v. City and County
of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004) (“The proponent of the deposition bears
the burden of proving that it is admissible under Rule 32(a).”).
First, the Court understands the unavailability of Mr. Robrahn is due to personal
reasons that purportedly are keeping him in Australia, despite the fact that he is alive and
well and was previously advised of the trial date in this matter. He is the defendant, not a
third party witness, and no trial deposition was requested by his counsel or taken prior to
Defendant leaving Idaho. And, neither Plaintiff nor the Court was advised of the
purported unavailability of Defendant until the pretrial conference. See Garcia-Martinez,
392 F.3d at 1191-92 (where plaintiff brought about his own absence from trial by
choosing to leave the country, plaintiff was not eligible to invoke Rule 32(a); plaintiff

2

Rule 32(a)(4) constitutes a recognized exception to the hearsay rule; if testimony of an
unavailable witness is properly admitted under Rule 32(a)(4), it need not also meet the requirements for
admissibility under Rule 804(b). Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 913 (9th Cir. 2008).

ORDER - 2

made “scant effort to make other arrangements to appear temporarily for trial or to make
himself available for remote testimony.”).
Second, even if Defendant could somehow establish unavailability (rather than
choosing not to appear for trial as the case appears to be), Defendant cannot, under Rule
804 of the Federal Rules of Evidence, successfully convert rank hearsay into statements
of a party opponent. Robrahn’s deposition testimony is hearsay. Fed. R. Evid. 801(c).
The deposition testimony consists of statements that Robrahn did not make while
testifying at the trial, and will be offered to prove the truth of the matters asserted. An
exception to the rule prohibiting hearsay is when the declarant is “unavailable.” Fed. R.
Evid. 804. The declarant, in this case Robrahn, must first meet the criteria in Rule 804(a)
for being unavailable as a witness. The applicable rule here is that he is “absent from the
trial or hearing and the statement’s proponent has not been able, by process or other
reasonable means” to procure his attendance. But, the rule just stated is not applicable “if
the statement’s proponent procured or wrongfully caused the declarant’s unavailability as
a witness in order to prevent the declarant from attending or testifying.” Fed. R. Evid.
804(a)(5).
Here, the statement’s proponent is Defendant himself. There has been no showing
that, other than for purely personal financial reasons, Defendant cannot otherwise be
procured to attend his own trial. Second, the exception to the application of 804(a)
applies. Here, the proponent of the statement (Defendant) has procured his own
unavailability as a witness. Robrahn knew the date of trial, voluntarily left the United
States, and chose not to return. See Vevelstad v. Flynn, 230 F.2d 695, 702 (9th Cir. 1956)
ORDER - 3

(finding no abuse of discretion in refusal to allow admission of deposition testimony of
defendant who voluntarily left the country before trial).
Defendant argues incorrectly that Fed. R. Evid. 801(d)(2) allows for introduction
of his deposition. But, application of Rule 801(d)(2) requires that the out of court
statement be “offered against an opposing party.” Here, Defendant is the party attempting
to offer his own statements into evidence; he is not offering recorded statements of the
party opponent (i.e., plaintiff). Only Plaintiff may offer, if he chooses to do so, recorded
statements made by Defendant during Defendant’s deposition. This is true whether
Defendant is present at trial or not. Defense counsel will therefore be prohibited from
referring to the statements of his client at any time (unless offered by Plaintiff and
admitted), including in his opening statements, as they constitute inadmissible hearsay.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Objection to
Defendant’s use of his deposition testimony at trial (Dkt. 56) is SUSTAINED.

July 31, 2015

ORDER - 4