FOSTER v. SMITHSON et al

Filing 190

ORDER denying 172 Motion for Deposition of Abraham Benjamin. Signed by Magistrate Judge Doris L. Pryor on 7/27/2019 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LA VERNE FOSTER,

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Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General, United States Postal Service,
Great Lakes Region,
Defendant.

No. 1:17-cv-04271-JRS-DLP

ORDER
This matter comes before the Court on the Plaintiff’s Motion for Deposition.
(Dkt. 172). The Plaintiff here requests permission to depose Abraham Benjamin for
a second time. Mr. Benjamin returned the errata sheet from his deposition and
included notes for the court reporter to attach the exhibits. Because of this, Plaintiff
believes that Mr. Benjamin may, after reviewing her exhibits, recall additional
information. The Plaintiff further requests that the Court order the Defendant to
pay all costs and expenses associated with this second deposition. The Defendant
responds that fact discovery has closed and dispositive motions were due on July 5,
2019; that the Plaintiff has not demonstrated good cause for a second deposition;
and that the Federal Rules require the noticing party to pay for the costs of
recording a deposition. [Dkt. 177 at 3-4.]
The Federal Rules of Civil Procedure provide that, “[u]nless otherwise
stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The

court must allow additional time consistent with Rule 26(b)(2) if needed to fairly
examine the deponent or if the deponent, another person, or any other circumstance
impedes or delays the examination.” Fed. R. Civ. P. 30(d)(1). The court need not
order an extended deposition if the extended deposition would be cumulative or
unreasonably burdensome, as provided by Rule 26(b)(2). Fed. R. Civ. P. 30(d)(1),
Advisory Committee Notes (2000). The burden will be on the moving party to show
good cause for why the extension is warranted. Id.
The Plaintiff cannot use the mere possibility that the deponent may recall
additional information to justify a second deposition. Moreover, the Advisory
Committee Notes encourage the deposing party to submit documents to the
deponent prior to the deposition, so that the deponent may familiarize himself with
the materials. Fed. R. Civ. P. 30(d)(1), Advisory Committee Notes (2000). Although
this is a suggestion and not a requirement of the rule, it would be inappropriate for
the Court to allow the Plaintiff to wait until the day of the deposition to provide the
deponent with documentation about which she will question him and then claim she
needs additional time for the deponent to become familiar with the exhibits. The
Plaintiff provided no other justification for needing a second deposition of Abraham
Benjamin. Good cause has not been shown and, accordingly, Plaintiff’s motion is
DENIED.
So ORDERED.

Date: 7/27/2019

Distribution:
All ECF-registered counsel of record via email generated by the court’s ECF system.
La Verne Foster
5305 Cotton Bay Drive West
Indianapolis, IN 46254-4520