McNamara et al v. American Family Mutual Insurance Company

Filing 46

MEMORANDUM AND ORDER granting in part 36 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 10/23/2013. (df) (Main Document 46 replaced on 10/23/2013. NOTE TO COUNSEL: Correct deposition date is 11/5/13. Main Document replaced to correct date.) (alm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICHARD McNAMARA and
ELIZABETH McNAMARA,

)
)
)
Plaintiffs, )
)
v.
)
)
AMERICAN FAMILY MUTUAL
)
INSURANCE COMPANY,
)
)
Defendant. )
______________________________ )

Case No. 13-2195-KHV

ORDER ON PLAINTIFF’S MOTION TO COMPEL
APPEARANCE AND TESTIMONY OF
ROBERT COLE COLLINS AT DEPOSITION
The present motion (Doc. 36) follows the deposition of an unrepresented
non-party witness, Robert Collins, on September 20, 2013. Mr. Collins appeared
pursuant to Defendant’s subpoena, which he acknowledged had been delivered
although he had not retrieved it from the mail. Mr. Collins is an important, perhaps
critical, witness in this case. The Court discussed the motion with both counsel by
telephone on October 15, 2013.
Following questions by Defendant, Mr. Collins was cross-examined by
Plaintiff’s counsel. Mr. Collins felt the questioning exceeded the proper scope of
questioning, and became less cooperative. Finally, Mr. Collins refused to respond
to some questions, at which point the deposition was adjourned and the present

motion was filed.
A deposition provides the parties with an important opportunity to discover
facts. The scope of questioning in a deposition is defined by Federal Rule of Civil
Procedure 26(b). A party may ask questions to obtain any non-privileged
information that is “relevant to any party’s claim or defense . . . .” Information
obtained during a deposition need not be admissible at trial if the discovery is
“reasonably calculated to lead to the discovery of admissible evidence.”
Local rules and practice provide that most objections to questions and
answers in a deposition are reserved for trial. The exceptions to this rule are
generally objections based on privilege (for example, attorney-client
communications), which was not an issue in this deposition, and objections based
on the form of the question. A witness may not generally refuse to answer an
objection simply because it exceeds the scope of proper discovery (unless the
answer is privileged) except to allow the witness or counsel to file a motion to
terminate or limit the deposition “on the ground it is being conducted in bad faith
or in a manner that unreasonably annoys, embarrasses, or oppresses” the witness.
Fed.R.Civ.P. 30(d)(3)(A).
An unrepresented non-attorney deposition witness is in the unenviable
position of participating in an unfamiliar procedure without a working knowledge
of the rules and has to rely on himself to protect rights which he does not fully

understand. In the vast majority of depositions, the good-faith conduct of counsel
and the cooperative spirit of the witness result in the completion of the deposition
without major difficulty.
The Court has read the transcript of Mr. Collins deposition. Generally,
counsel and witness were courteous and cooperative. However, Plaintiff’s counsel
asked a couple of series of questions which stretched the scope of discovery and
approached the conduct prohibited by Fed.R.Civ.P. 30(d)(3)(A). The witness
became annoyed, and thereafter less cooperative, resulting in the refusal to respond
to some proper questions. The result is the present motion requesting the Court
order the completion of the deposition and order the witness to respond to certain
questions. This particular situation suggests an unusual remedy.
Plaintiff’s motion is GRANTED in part as follows:
1.

The witness, Robert Collins, remains under the previous subpoena

because the deposition was not completed. The deposition will resume November
5, 2013, at the United State Courthouse in Topeka, Kansas (The Frank Carlson
Federal Building) 444 S.E. Quincy, Courtroom 403 at 1:30 PM. Mr. Collins is
ORDERED TO APPEAR. The deposition will be completed no later than 3:30
PM.
2.

To ensure the completion of the deposition, and to adjudicate disputes

which may arise, the undersigned Magistrate Judge will preside, in person, over the

deposition. Counsel are advised, however, that this remains a deposition, thus
counsel are responsible for the court reporter. The rules of depositions, not trial,
will apply.
3.

Counsel are directed to cooperate to ensure that a copy of this Order is

served upon the witness as soon as possible.
4.

Mr. Collins is advised that he is permitted (although not required) to

be represented by his own attorney at the deposition.
IT IS SO ORDERED.
s/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge