Stuhlmacher et al v. Home Depot USA Inc The et al

Filing 61

OPINION AND ORDER denying 55 Motion for Leave to Take a 30(b)(6) Deposition or to Seek Leave for Trial Deposition of Dennis Simpson ; denying 59 Motion to Strike Defendants Reply to Plaintiffs Brief. Signed by Magistrate Judge Andrew P Rodovich on 3/4/14. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KURT STUHLMACHER and
)
KELLY STUHLMACHER,
)
)
Plaintiffs,
)
)
v.
) Cause No.: 2:10-CV-00467-APR
)
THE HOME DEPOT U.S.A., INC.
)
and TRICAM INDUSTRIES, INC.
)
)
Defendants.
)
OPINION AND ORDER
This matter is before the court on the Motion for Leave to Take a 30(b)(6) Deposition or
to Seek Leave for Trial Deposition of Dennis Simpson [DE 55] filed by the plaintiffs on January
10, 2014, and the Motion to Strike Defendants’ Reply to Plaintiffs’ Brief [DE 59] filed by the
plaintiffs on January 17, 2014. For the following reasons, the Motion for Leave to Take a
30(b)(6) Deposition or to Seek Leave for Trial Deposition of Dennis Simpson [DE 55] is
DENIED, and the Motion to Strike Defendants’ Reply to Plaintiffs’ Brief [DE 59] is DENIED.

Background
The plaintiff, Kurt Stuhlmacher, purchased a ladder that he alleges collapsed beneath him
on October 31, 2008, causing injuries. The defendants, The Home Depot U.S.A., Inc. and
Tricam Industries, Inc., were involved in the production and distribution of the ladder. During
the discovery process, the plaintiffs deposed Dennis Simpson, an employee of Tricam who was
involved with the product development and design of the ladder. The plaintiffs believed that
Simpson would be present to testify as a witness at trial. The parties dispute whether Tricam

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ever gave the plaintiffs reason to believe that Simpson or another Tricam representative would
be present at the trial. The plaintiffs now move for leave to conduct a deposition of a Tricam
representative or to conduct a video deposition of Simpson. This matter is scheduled for trial to
begin April 7, 2014.
Discussion
On December 6, 2013, the court ordered both parties to file a brief by January 10, 2014,
addressing whether the plaintiffs should be permitted to take the video deposition of Simpson.
Both parties filed a brief on that date. See DE 54 & 55. On January 15, 2014, the defendants
submitted a letter seeking leave to file a response to the plaintiffs’ brief, and filed their response
contemporaneously. The plaintiffs now move to strike the defendants’ response, arguing that the
court expressly and clearly established one deadline for both parties to follow and that the
defendants failed to comply with this deadline. As the defendants point out, they did comply
with the deadline and filed a brief on this date. They now argue that the plaintiffs raised
additional issues that had not been discussed at the parties’ pretrial conference, including the
plaintiffs’ request to take a Rule 30(b)(6) deposition of a Tricam representative, and ask the court
for leave to respond to these issues. Because the record reflects that the defendants did comply
with the court’s directive, but wish to address additional arguments, the court DENIES the
plaintiffs’ Motion to Strike.
The plaintiffs now move to take the deposition of Simpson and a Tricam Corporation
representative, arguing that a change in the Federal Rules of Civil Procedure has made it
necessary and that this court has recognized a distinction between trial depositions and discovery
depositions, rendering their request timely. Under Federal Rule of Civil Procedure 16(b), the
court is required to issue a scheduling order setting forth the deadlines for the parties to complete
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discovery and file motions. “A schedule may be modified only for good cause and with the
judge's consent.” Rule 16(b)(4). Good cause is shown when despite a party's diligence, the
deadlines could not reasonably have been met. See Link v. Taylor, 2009 WL 281054, *2
(N.D.Ind. Feb.2, 2009).
During the discovery period, the parties may obtain discovery of anything that may lead
to relevant evidence through a variety of tools. Federal Rule of Civil Procedure 26(b)(1). As
one tool of discovery, Federal Rule of Civil Procedure 32(a)(4)(C), permits parties to take
depositions of anyone whose testimony may lead to relevant, admissible evidence. Because
discovery is conducted for the purpose of gathering new information, some courts have drawn a
distinction between depositions taken during the course of discovery, with the goal of
ascertaining new information, and trial depositions taken to preserve information that the party
already has knowledge of, but would be otherwise unavailable. Spangler v. Sears, Roebuck and
Co., 138 F.R.D. 122, 124–25 (S.D.Ind. 1991); Charles v. Wade, 665 F.2d 661, 665 (5th Cir.
1982). The courts that have recognized the practice of taking trial depositions have found them
to be outside the scope of discovery and not bound by the court's scheduling order because they
differ from discovery depositions. Spangler, 138 F.R.D. at 125 (“[T]his court expected that the
parties would not be guided merely by the express terms of this court's order”); Charles, 665
F.2d at 665.
When a party opposes a trial deposition scheduled for after the close of discovery, the
court must assess whether the deposition is being taken for the purpose of preserving testimony
or whether it is a pretext for the party's failure to procure the deposition during the discovery
period. Charles, 665 F.2d at 665. The court should consider a variety of factors in making this

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determination, including the unavailability of the witness for trial, the potential for prejudice to
the opposing party, and whether the deposing party knew the information the potential witness
would testify to prior to the deposition. Charles, 665 F.2d at 664–65. Special emphasis should be
placed on the potential for prejudice because the witness' unavailability may not be known until
shortly before trial, and given the nature of depositions, both parties are likely to learn new
information. Spangler, 138 F.R.D. at 124. If the court permits a trial deposition to be taken, and
it is later revealed that the party who requested the deposition took it solely for discovery
purposes rather than to memorialize testimony for later use at trial, sanctions may be issued
against that party for violating the court's scheduling order. Spangler, 138 F.R.D. at 124. The
court's determination is subject to an abuse of discretion review. Charles, 665 F.2d at 667.
However, other courts have rejected the distinction between a trial deposition and
discovery deposition. See Anderson v. Procter & Gamble Paper Products Co., 2013 WL
5651802, *2 (E.D. Wis. Oct. 15, 2013); BondPro Corp. v. Siemens Westinghouse Pwr. Corp.,
2005 WL 256488 (W.D. Wis. Jan. 31, 2005). The Anderson court explained that there was
nothing to stop the party from conducting the deposition during the discovery period and that
recognizing trial depositions would create a burdensome analysis. “When the scheduling order
governing an action already provides concrete deadlines for discovery, including depositions,
there would seem to be little upside to engaging in an analysis merely to allow “trial depositions”
that could have occurred within the confines of the discovery schedule.” Anderson, 2013 WL
5651802, at *2. The Anderson court further noted that Rule 16 was amended to create a
comprehensive framework for setting deadlines, preventing the last-minute trial depositions.
Anderson, 2013 WL 5651802, at *3.

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Under Rule 16's comprehensive scheme, it is not clear that a “trial deposition” is
contemplated by the Federal Rule. Assuming that trial depositions no longer are recognized,
Rule 16 allows the court to amend the discovery deadlines only upon a showing of good cause.
The plaintiffs argue that they have demonstrated good cause because Federal Rule of Civil
Procedure 45 was amended on December 1, 2013, after discovery closed, to limit the court’s
power to subpoena corporate representatives more than 100 miles from their place of residence.
The plaintiffs argue that prior to this amendment “the argument could be made that corporate
representatives could be compelled to testify more than 100 miles from their place of residence
because they were officers of a party and not third party witnesses.” (Pl.’s Br. p. 3) Even the
plaintiffs’ argument casts doubt on whether the court had this power prior to the amendment.
The version of Rule 45 in effect at the commencement of this case stated that the court
must quash a subpoena that requires a person “who is neither a party nor a party’s officer to
travel more than 100 miles from where that person resides, is employed, or regularly transacts
business . . .” Although most courts agreed that the plain language of the Rule 45 prior to its
amendment extended the court’s subpoena power beyond 100 miles for parties and their officers,
a minority of courts, including a district court within the Seventh Circuit, rejected the principle
that Rule 45 altered the longstanding geographic limitations of a district court’s subpoena power.
See Jamsport Entertainment, LLC v. Paradama Productions, Inc., 2005 WL 14917, *1 (N.D.
Ill. Jan. 3, 2005) (rejecting argument that subpoena power reached beyond 100 miles for
corporate executives); Johnson v. Land O'Lakes, Inc., 181 F.R.D. 388, 396-97 (N.D.Iowa
1998)(same), but see Am. Fed. of Gov't Employees Local 922 v. Ashcroft, 354 F.Supp.2d 909,
915 (E.D.Ark.2003); In re Ames Dep't Stores, Inc., No. CIV.A. 01-42217, 2004 WL 1661983,

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at *1 (Bankr.S.D.N.Y. June 25, 2004); Mason v. Texaco, Inc., 741 F.Supp. 1472, 1504
(D.Kan.1990); Ferrel v. IBP, Inc., No. CIV.A. 98-4047, 2000 WL 34032907, at *1 (N.D.Iowa
Apr. 28, 2000); Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 587
(D.Minn.1999); Younis v. American Univ. in Cairo, 30 F.Supp.2d 390, 395 n. 44
(S.D.N.Y.1998); Prudential Sec., Inc. v. Norcom Devel., Inc., No. CIV.A. 97-6308, 1998 WL
397889, at *5 (S.D.N.Y. July 16, 1998); Stone v. Morton Int'l, Inc., 170 F.R.D. 498, 500-01
(D.Utah 1997); Venzor v. Chavez Gonzalez, 968 F.Supp. 1258, 1267 (N.D.Ill.1997); Nat'l Prop.
Investors, VIII v. Shell Oil Co., 917 F.Supp. 324, 329 (D.N.J.1995); M.F. Bank Restoration Co.
v. Elliott, Bray & Riley, No. CIV.A. 92-0049, 1994 WL 719731, at *8 (E.D.Pa. Dec. 22, 1994).
Despite this uncertainty, the plaintiffs did not take precautions to depose a corporate
representative or assure the availability of the testimony of a corporate representative.
The plaintiffs further argue that Rule 30(b) requires the corporation to produce a
knowledgeable representative for deposition. However, it does not state that such must be
available after discovery has closed. The defendants never made any representations that a
representative would be present at trial, and the record is devoid of any efforts the plaintiffs
made to secure the testimony of a corporate representative prior to the close of discovery.1
Even if the court were to recognize trial depositions as distinct from discovery, the

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This is further support that the plaintiffs’ motion should be denied. The plaintiffs
argue that the amendment to Rule 45 was the cause of their failure to conduct a deposition.
However, the previous version of Rule 45 allowed the court to subpoena a corporate officer who
resided more than 100 miles from the court. The plaintiffs now request a knowledgeable
witness, who, like Simpson, may not be an officer of the company. Therefore, the plaintiff had
no reason to believe that the defendants would have a knowledgeable witness present at the trial,
and its request resounds of one for discovery rather than for a “trial deposition”. Because the
plaintiffs have not provided any explanation of their failure to request such a deposition before
discovery closed, they have failed to show good cause.
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plaintiffs’ request to take a deposition of a Tricam representative is outside the scope of what is
contemplated to be a trial deposition. Trial depositions are limited to preserving testimony rather
than seeking out new information. The plaintiffs have not shown that the information sought by
the proposed deposition of a Tricam representative would be limited to this purpose.
Additionally, although a Tricam representative may be unavailable for trial— something the
plaintiffs should have considered earlier — permitting the plaintiffs to take the deposition on the
eve of trial could only result in prejudice to the defendants.
The plaintiffs also moved to take the trial deposition of Simpson. The plaintiffs
explained that Simpson’s testimony currently is available only in a form that is not binding on
the corporation and is assembled in a way that would not facilitate presentation at trial. The
plaintiffs again urge that the amendment to Rule 45 makes Simpson’s trial deposition necessary
because they learned only after the amendment that Tricam did not intend to produce a corporate
representative as a witness at trial. The court already has rejected the plaintiffs’ argument that
the amendment to Rule 45 is good cause for amending the discovery deadline, as it never was
clear that the court could subpoena a corporate representative residing more than 100 miles
away. Additionally, the defendants state that Simpson was not a corporate executive and would
not have been subject to subpoena even if Rule 45 did extend the court’s power to subpoena
corporate executives prior to the amendment.
The plaintiffs have explained why they did not conduct Simpson’s deposition in a way
that would be binding on the corporation or would facilitate presentation at trial prior to the
discovery deadline. Even if the previous version of Rule 45 was applicable, Simpson was not an
officer of Tricam and never could have been subpoenaed to appear. The defendants further

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make clear that they never intended to have Simpson testify. Even under Bamcor v. Jupiter
Aluminum Corp., 2010 WL 4955545 (N.D. Ind. Nov. 29, 2010), on which the plaintiffs rely, the
court considered whether the plaintiffs had good cause for their failure to conduct the deposition
within the discovery period. Here, the record is without explanation. The plaintiffs have not
shown that they were diligent, did not have adequate time to conduct the depositions, or that any
other circumstance prevented them from taking the deposition within the discovery period.
Additionally, the defendants argue that it would be cumulative and duplicative to allow
the plaintiffs to conduct a second deposition. The deposition of a witness may be used at trial if
the court finds that the witness is greater than 100 miles from the place of trial. Therefore,
Simpson’s deposition can be used in its present form, and allowing a second deposition to elicit
the same testimony would be cumulative. Although Simpson is not available to testify at the
trial— a fact that has not changed since the plaintiffs took Simpson’s deposition — the plaintiffs
have not explained why they did not conduct the deposition in the manner they preferred for
presentation at trial when they first conducted Simpson’s deposition, nor have they demonstrated
that his testimony is unavailable. Rather, they have only shown that the deposition they
previously took is now insufficient for their purposes. A second deposition is not warranted
under these circumstances.
ENTERED this 4th day of March, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

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