Hathaway v. Idaho-Pacific Corporation
MEMORANDUM DECISION AND ORDER. IPC's Rule 43 Motion is DENIED. Thibert's Motion to Quash is GRANTED. The parties may depose Thibert and use her testimony in accordance with this order. Signed by Judge David C. Nye. (alw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 4:15-cv-00086-DCN
MEMORANDUM DECISION AND
IDAHO PACIFIC CORPORATION
Pending before the Court are Defendant Idaho Pacific Corporation’s (“IPC”) Rule
43 Motion (Dkt. 205) and third-party Angela Thibert’s Motion to Quash Subpoena to
Appear and Testify at a Hearing or Trial in a Civil Action (Dkt. 216). Having reviewed the
record and briefs, the Court finds that the facts and legal arguments are adequately
presented. Accordingly, in the interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly aided by oral argument, the
Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
In September 2019, IPC subpoenaed Angela Thibert, who works for Liberty Mutual
and assisted in Ross Hathaway’s claims, to testify. Thibert, who acts as a primary caregiver
The underlying facts of the case, which are well known to the parties, have been set out numerous times
in previous orders. The Court will not present them here.
MEMORANDUM DECISION AND ORDER - 1
to her husband due to his serious medical needs, informed IPC that she could not travel
from where she lives (Middleton) to where trial will be held (Pocatello), about 218 miles
as the crow flies. Because there are no family or friends who can care for her husband,
Thibert states that she must always be within a half hour of her home. Though she works
full-time, Thibert spends half of her time working from home so she can tend to her
husband’s medical needs.
Due to Thibert’s duties as a caregiver, IPC filed the pending Rule 43 Motion seeking
an alternative way to present Thibert’s testimony other than having her appear for trial in
Pocatello. Thibert also filed a Motion to Quash her subpoena. Trial is set to commence on
October 28, 2019.
III. LEGAL STANDARD
There are multiple remedies available when a witness would have trouble testifying
at trial. Federal Rule of Civil Procedure 43 states in part that “[f]or good cause in
compelling circumstances and with appropriate safeguards, the court may permit testimony
in open court by contemporaneous transmission from a different location.” Fed. R. Civ. P.
43(a). Similarly, when a subpoenaed person can show that testifying at trial would subject
her to undue burden, a court must quash or modify the subpoena. Fed. R. Civ. P. 45(3).
As a preliminary matter, the Court finds that Thibert’s testimony is relevant.
Hathaway challenges any testimony she may provide as irrelevant because he is not making
any claim against Liberty Mutual and that any testimony concerning Liberty Mutual’s
process for handling claims does not affect his claims against IPC. Hathaway is
MEMORANDUM DECISION AND ORDER - 2
overlooking the fact that IPC sent Thibert an email stating that it did not know how to
handle Hathaway’s claim, and that IPC attached multiple documents to the aforementioned
email, including a doctor’s report supporting Hathaway’s shoulder injury claim. Thibert’s
testimony on her interactions with IPC and how she handled the discrepancy between IPC’s
report, which excluded information about Hathaway’s shoulder injury, and the documents
attached to the email, is therefore relevant.
Turning now to the practical difficulty regarding any testimony Thibert may
provide, based on the briefing and affidavits contained in the two pending motions, the
Court finds that requiring Thibert to attend trial in Pocatello would subject her to an undue
burden. As such, the Court will not require Thibert to travel to Pocatello for trial and hereby
quashes the subpoena.
Further, the Court declines to require Thibert to testify through a contemporaneous
transmission from the federal courthouse located in Boise, Idaho. Though that location is
much closer to Thibert’s home and husband, the Court would like to avoid overseeing one
trial simultaneously taking place in two places hundreds of miles apart—it is difficult
enough to oversee trial in just one location.
With that being said, the Court will provide a way to introduce Thibert’s testimony.
The Court will allow IPC to take a video deposition of her for use at trial.2 The parties must
work together to determine the date, time, and location of the deposition. The deposition
must occur within 40 miles of Thibert’s residence. The parties may then use Thibert’s
This video deposition may be done regardless of the number of depositions already taken in this matter
and regardless of whether Thibert has already been deposed.
MEMORANDUM DECISION AND ORDER - 3
testimony, to the extent it is admissible and relevant, at trial pursuant to Federal Rule of
Civil Procedure 32 and any other applicable rules. It will be IPC’s responsibility to serve
a subpoena if needed to ensure the witness’s attendance.
IT IS HEREBY ORDERED THAT:
1. IPC’s Rule 43 Motion is DENIED.
2. Thibert’s Motion to Quash is GRANTED.
3. The parties may depose Thibert and use her testimony in accordance with this
DATED: October 21, 2019
David C. Nye
Chief U.S. District Court Judge
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