165 PARK ROW INC v. JHR DEVELOPMENT LLC

Filing 84

ORDER ON OBJECTION TO PLAINTIFFS PROPOSED TRIAL DEPOSITIONS By MAGISTRATE JUDGE JOHN H. RICH III. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

165 PARK ROW, INC., d/b/a
THE BRUNSWICK INN,
Plaintiff
v.
JHR DEVELOPMENT, LLC and
MAINE AND NOBLE, LLC,
Defendants

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No. 2:12-cv-106-NT

ORDER ON OBJECTION TO PLAINTIFF’S PROPOSED TRIAL DEPOSITIONS
This case is presently on the court’s December 2013 trial list, with a jury to be chosen on
December 2, 2013. On October 17, 2013, I held a telephone conference with counsel in response
to a letter from the defendants’ attorney, objecting to three trial depositions noticed by the
plaintiff after the close of discovery. Report of Hearing and Order re: Trial Depositions (ECF
No. 68). After hearing argument, I directed counsel to submit letter briefs on the propriety of the
three trial depositions. The parties have now submitted the letter briefs. For the reasons that
follow, I overrule the defendants’ objection and grant the plaintiff leave to take the three trial
depositions.
Discussion
The plaintiff’s attorneys seek to depose Cliff Routh and Jan Routh, residents of Virginia,
and Diann Simmons, a resident of Massachusetts. Each is beyond the subpoena power of this
court, and none is likely to come to Maine voluntarily to testify at trial in this matter. The
plaintiff’s attorneys had noticed these depositions for October 18 and 22, 2013, to be conducted
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via telephone and streaming video. Id. at 1. The depositions were suspended pending resolution
of the dispute.
The discovery deadline in this case was more than a year ago: October 12, 2012. In its
answers to the defendants’ interrogatories served before the close of discovery, the plaintiff
stated the following in its multi-page response to the question, “Please state the facts in support
of your contention . . . that the name ‘The Inn at Brunswick Station’ is ‘confusingly or
deceptively similar’ to the name ‘The Brunswick Inn’”: “[2012] 1/20 – Jan and Cliff Routh
party—after telling all the swimming parents that the dinner was at The Brunswick Inn, ‘not the
new hotel,’ about a dozen went up to The Inn at Brunswick Station[;]” and “8/2—Denise [sic]
Simmons stayed with us last year and tried to check in today. She is with Becky Brodigan’s
Women’s Seminar and when she saw ‘Brunswick’ and ‘inn’ she assumed she was staying here
again. In fact her itinerary said ‘Inn at Brunswick Station.’” Plaintiff’s Answers to Defendants’
First Set of Interrogatories (Exh. A to Letter-brief dated October 21, 2013 from James G.
Goggin, Esq., to Hon. John H. Rich III) (“Goggin Letter-brief”) at 9, 13. The answers to
interrogatories are dated August 3, 2012.
On January 14, 2013, the plaintiff filed its opposition (ECF No. 34) to a motion for
summary judgment that had been filed by the defendants (ECF No. 26). The opposition was
accompanied by nine affidavits, one of which was executed by Jan Routh. ECF No. 35-4. The
defendants moved to exclude all of the affidavits on the grounds that all of the witnesses except
Routh had not been identified until after the discovery deadline and that the subject of Routh’s
testimony had not been disclosed before the discovery deadline. Defendants’ Motion to Exclude
Declarations of Witnesses Who Were Not Identified until After Discovery Deadline (ECF No.
41) at 1. I granted the motion, except as to Routh, and held that the information quoted above in

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the plaintiff’s interrogatory answer was sufficient, “although barely,” to allow the plaintiff to rely
on Routh’s declaration in support of its opposition to the motion for summary judgment.
Memorandum Decision on Motion to Exclude (ECF No. 51) at 8-9.
That ruling and, more specifically, the defendants’ receipt of Jan Routh’s declaration,
dated January 11, 2013, Declaration of Jan Gorman Routh (ECF No. 35-4) at 2, undermines the
defendants’ assertion here that each of the three witnesses whom the plaintiff wishes to depose
will offer “new factual evidence at this late stage” that will be “absolutely prejudicial to the
Defendants[.]” Letter-brief dated October 21, 2013, from Frank N. Gaeta, Esq., to Hon. John H.
Rich III, at 2. Counsel for the plaintiff stated at the October 17 telephone conference on this
issue and reiterated in his October 21 letter-brief that he will only ask the witnesses whose
depositions he seeks to testify “as to what was disclosed about them” in the interrogatory answer
quoted above.

Goggin Letter-brief at 1.

Under these circumstances, any prejudice to the

defendants from the taking of these depositions, and particularly that of Jan Routh, see Burket v.
Hyman Lippitt, P.C., Nos. 05-72110, 05-72171, 05-72221, 2008 WL 1741875, at *3 (E.D. Mich.
Apr. 11, 2008) (allowing trial deposition noticed seven months after close of discovery where
deponent’s affidavit had been submitted in response to motion for summary judgment), will be
minimal. See, e.g., Estate of Gee v. Bloomington Hosp. & Health Care Sys., Inc., 2012 WL
729269, at *7 (S.D. Ind. Mar. 6, 2012) (negligible risk of unfair prejudice in allowing trial
deposition first noticed 40 months after discovery deadline to proceed where objecting parties
had been on notice that deponent might be called as witness and party seeking deposition had
arranged to take it via videoconferencing so that opposing counsel would not have to travel).
As the parties’ letter-brief submissions demonstrate, case law on this issue is not uniform.
Thus, a few courts have concluded that there is no distinction between a discovery deposition

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and a trial deposition, and, therefore, even a trial deposition must be taken before the end of the
discovery period. Crawford v. United States, No. 11-CV-666-JED-PJC, 2013 WL 249360, at *4
(N.D. Okla. Jan. 23, 2013) (relying on Integra); Integra Lifesciences I, Ltd. v. Merck KGaA, 190
F.R.D. 556, 560 (S.D. Cal. 1999). The defendants also cite Henkel v. XIM Prods., Inc., 133
F.R.D. 556, 558 (D. Minn. 1991), where the court would not allow a party to conduct a trial
deposition of a witness after the close of discovery where the party had chosen not to ask any
questions of the witness at his discovery deposition.
As my opinion in Shannon v. Sasseville, Civil No. 08-343-P-H, 2009 WL 3711484, at *2
(D. Me. Nov. 3, 2009), suggests, I find more persuasive the majority of courts that have weighed
in on this subject, holding that there is a distinction to be made between discovery depositions
and those intended to preserve testimony for trial. It is true that the post-discovery depositions
sought in Sasseville would present only rebuttal testimony, while the depositions sought here will
be part of the plaintiff’s initial presentation of its case on the merits, but that difference is not
dispositive. Like the judge in Estenfelder v. Gates Corp., 199 F.R.D. 351, 355 (D. Colo. 2001), I
conclude that the Henkel and Integra courts (as well as the Crawford court, which issued its
opinion 12 years after Estenfelder) did not sufficiently distinguish between discovering evidence
and preserving evidence; moreover, the lawyers who sought to take post-discovery depositions in
those cases had waived any right to do so for tactical reasons, which is not a circumstance
alleged by the defendants here.
In Odell v. Burlington Northern RR. Co., 151 F.R.D. 661 (D. Colo. 1993), the court
allowed post-discovery trial depositions of individuals who were named in the plaintiff’s medical
records, although the defendants had not listed them in their submission for the pretrial order,
noting that “[i]t [is] simply farfetched to believe that Plaintiff could not have foreseen that on-

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the-scene witnesses . . . would not be called to testify.”

Id. at 663. The same is true of the

Rouths and Simmons in this case.
I am troubled by the fact that the plaintiff failed to notice these depositions until shortly
before trial. As was the case in Sasseville, the plaintiff here has not explained its failure to take
these depositions earlier, as it certainly knew, at least from the time when it provided responses
to the defendants’ interrogatories in August 2012, that these witnesses lived out of state and what
testimony they could offer. Delay is a factor that must be considered in such instances. 2009
WL 3711484 at *2. However, again as in Sasseville, the plaintiff has offered to take these
depositions “in a manner that does not delay trial as currently scheduled.”

Id.

That is

particularly apt in this case, which has been moved to the December 2013 trial list, with jury
selection set for December 2, 2013. In addition, the parties have agreed that the trial depositions
will be limited to what has already been disclosed about each of the witnesses, and the plaintiff
has proposed taking the depositions via telephone and video feed, further minimizing the
prejudice to the defendants. Under all of these circumstances, the three trial depositions should
be allowed.
Conclusion
For the foregoing reasons, the defendants’ objection to the plaintiff taking the depositions
of Cliff and Jan Routh and Diann Simmons, limited to the subject matter specified above and
conducted by telephone and streaming video, is OVERRULED. The depositions shall take
place as soon as possible.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.

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Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.

Dated this 28th day of October, 2013.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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