BICKFORD v. MARRINER

Filing 67

ORDER on O'Hara Corp. Deposition Objections. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID A. BICKFORD,
Plaintiff,
v.
ALAN D. MARRINER,
Defendant.

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2:12-cv-00017-JAW

ORDER ON O’HARA CORP. DEPOSITION OBJECTIONS
On December 28, 2012, with trial looming, David A. Bickford filed a
designation of the Rule 30(b)(6) deposition testimony of the O’Hara Corporation
(O’Hara) that included Alan D. Marriner’s unresolved objections. Pl.’s Designation
of the 30(b)(6) Dep. Test. of the O’Hara Corp. and the Def.’s Unresolved Objections
(ECF No. 60) (Pl.’s Designation).

The same day, Mr. Marriner filed a counter-

designation, which included Mr. Bickford’s unresolved objections. Def.’s CounterDesignation of the 30(b)(6) Dep. Test. of Paul McFarland and the Pl.’s Unresolved
Objections (ECF No. 48).
Pursuant to Federal Rule of Civil Procedure 32, Mr. Marriner objects to the
admission of the O’Hara deposition on the ground that Mr. Bickford has made no
showing that Mr. McFarland, the corporate deponent, is unavailable.

Pl.’s

Designation at 1-2. Although Mr. Bickford explained his evidentiary objections, he
did not respond to this objection. Id. at 1-4. Federal Rule of Civil Procedure 32(a)
establishes some prerequisites for the use of depositions in court proceedings. FED.

R. CIV. P. 32(a). When, as here, the deposition is not being used for impeachment
purposes and is not the deposition of a party, the party proffering the deposition
must establish that the witness is unavailable under Rule 32(a)(4). See FED. R. CIV.
P. 32(a); 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER,
FEDERAL PRACTICE

AND

AND

RICHARD L. MARCUS,

PROCEDURE § 2146, at 642 (3d ed. 2010). Unavailability

requires that the witness is dead, is more than 100 miles from the place of the trial,
cannot attend or testify due to age, illness, infirmity, or imprisonment, could not be
subpoenaed, or that on motion and notice, “exceptional circumstances make it
desirable—in the interest of justice and with due regard to the importance of live
testimony in open court—to permit the deposition to be used.”

FED. R. CIV. P.

32(a)(4)(A)-(E).
There is no indication on this record that any of these prerequisites have
been satisfied.

To the contrary, Mr. Bickford and Mr. Marriner listed Paul

McFarland as a possible witness.

Def. Alan Marriner’s Comprehensive Witness

List, 5 (ECF No. 46); Pl.’s Witness List, 3 (ECF No. 61). Just this past year, the
First Circuit reiterated the importance of compliance with the provisions of Rule
32(a)(4) in concluding that a district court correctly rejected a party’s request for use
of deposition testimony in lieu of live testimony where the proponent failed to make
a proper showing under Rule 32(a)(4)(C). See Delgado v. Pawtucket Police Dep’t,
668 F.3d 42, 48-49 (1st Cir. 2012).
As Mr. Bickford has not addressed this issue, the Court SUSTAINS Mr.
Marriner’s objection under Rule 32 but does so without prejudice to Mr. Bickford’s

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opportunity to present an argument for the admission of the O’Hara deposition.
The Court ORDERS that David A. Bickford may not present the deposition
testimony of the O’Hara Corp. in lieu of the live testimony of its designee Paul
McFarland unless upon further showing and an Order of this Court.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 3rd day of January, 2013

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