C&M PROPERTY MANAGEMENT LLC et al v. MOARK LLC

Filing 97

MEMORANDUM DECISION AND ORDER re: 67 Objection to Defendant's Deposition Designations. By MAGISTRATE JUDGE JOHN H. RICH III. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

C&M PROPERTY MANAGEMENT,
LLC,
Plaintiff
v.
MOARK, LLC,
Defendant

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No. 2:15-cv-00336-JHR

MEMORANDUM DECISION AND ORDER ON PLAINTIFF’S
OBJECTIONS TO DEFENDANT’S DEPOSITION DESIGNATIONS
In advance of trial, plaintiff C&M Property Management, LLC (“C&M”) has filed a series
of objections to deposition designations made by defendant Moark, LLC (“Moark”).

See

Plaintiff’s Objections to Moark, LLC’s Proposed Deposition Designations (“Objections”) (ECF
No. 67). At issue are designations of portions of an April 15, 2015, deposition of Michael E.
Warbin (“2015 Warbin Deposition”), an October 5, 2016, deposition of Warbin (“2016 Warbin
Deposition”), and an April 15, 2015, deposition of Trooper Eric Paquette (“Paquette Deposition”).
For the reasons discussed below, I sustain the Objections in part, to the extent that Moark offers
the Paquette Deposition in evidence; deem the Objections moot in part, to the extent that Moark
concedes their validity; and otherwise overrule them without prejudice to their interposition by
C&M at trial.1

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Presumably pursuant to Federal Rule of Civil Procedure 32(a)(6), C&M counter-designates one additional excerpt
from the 2015 Warbin Deposition, three from the 2016 Warbin Deposition, and three from the Paquette Deposition.
See Objections at [2]-[5]; Fed. R. Civ. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse
party may require the offeror to introduce other parts that in fairness should be considered with the part introduced,
and any party may itself introduce any other parts.”). Moark indicates that it objects to C&M’s use of the excerpt
from the 2015 Warbin Deposition, two of the three excerpts from the 2016 Warbin Deposition, and one of the three
excerpts from the Paquette Deposition. See Defendant’s Response to Plaintiff’s Objections to Defendant’s Deposition
Designations (“Response”) (ECF No. 88) at 8, 15, 17. Moark seeks no ruling on its objections to C&M’s counter-

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I. 2015 and 2016 Warbin Depositions
C&M interposes objections on a variety of bases, including lack of foundation, vagueness,
relevance, argumentativeness, and/or its invocation of Federal Rule of Evidence 410, to the use of
25 designated passages of the 2015 Warbin Deposition and 23 designated passages of the 2016
Warbin Deposition. See Objections at [1]-[4]. Moark does not contest the validity of some of
those objections, see Response at 1-15, mooting the Objections to that extent.
Otherwise, I overrule the Objections as to the Warbin deposition designations without
prejudice to C&M’s assertion of those objections at trial. While Moark’s use of Warbin’s
depositions “for any purpose” at trial seemingly is permissible pursuant to Federal Rule of Civil
Procedure 32(a)(1) and (3), and C&M does not argue otherwise, the court retains “discretion to
exclude parts of the deposition that are unnecessarily repetitious in relation to the testimony of the
party on the stand[.]” 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal
Practice and Procedure § 2145, at 641 (3d ed. 2010) (footnote omitted).
I expect that the bulk of the testimony of Warbin, the plaintiff’s principal and a key witness
in this case, will be presented live from the witness stand, with his deposition testimony reserved
for traditional usages such as impeachment or rebuttal. No useful purpose is served by addressing
in advance of trial the myriad objections to Warbin’s deposition testimony that may very well be
superseded by his trial testimony.
Should Moark wish to use portion(s) of the Warbin depositions as to which objections
remain, it should call for a sidebar conference, during which I will hear argument and rule on the
remaining objections. I observe that, as concerns C&M’s reliance on Federal Rule of Evidence
410, I am inclined to agree with Moark that the rule is inapposite in that the evidence at issue

designations, see id.; however, even assuming that it does, I decline to rule in advance of trial for the reasons explained
herein.

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would not be “admissible against the defendant who made the plea[,]” Warbin, but rather against
C&M, the sole remaining plaintiff in this case. Fed. R. Evid. 410(a). Nonetheless, I make no
ruling on this point, unless and until it is necessary to do so at trial with the benefit of argument by
both sides.
II. Paquette Deposition
C&M objects to the designation of the Paquette testimony to the extent that there has been
no representation from Moark that Paquette is unavailable to testify at trial pursuant to Federal
Rule of Civil Procedure 32(a)(4). See Motion at [4]. It also objects to the use at trial of seven
specific passages from that deposition on relevance, hearsay, and/or foundation grounds. See id.
at [4]-[5].
Rule 32(a)(1) provides, in relevant part, that a deposition may be used against a party at
trial on condition that “(A) the party was present or represented at the taking of the deposition or
had reasonable notice of it[,]” “(B) it is used to the extent it would be admissible under the Federal
Rules of Evidence if the deponent were present and testifying[,]” and “(C) the use is allowed by
Rule 32(a)(2) through (8).” Fed. R. Civ. P. 32(a)(1). Rule 32(a)(4) permits the “use for any
purpose [of] the deposition of a witness, whether or not a party, if the court finds” that the witness
is unavailable, as that term is defined therein. Fed. R. Civ. P. 32(a)(4).
Moark, which lists Paquette as one of its expected trial witnesses, see ECF No. 74 at 2,
makes no argument that Paquette is unavailable to testify, or that any other applicable subsection
of Rule 32(a) would permit his deposition to be offered into evidence at trial, see Response at 1517. Therefore, I sustain the Objections to the extent that I preclude Moark from offering the
Paquette Deposition in evidence at trial under Federal Rule of Civil Procedure 32(a)(4).

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As to C&M’s specific objections, Moark states that it does not challenge C&M’s objection
to its use of one of its designated excerpts from the Paquette Deposition, see id. at 15, mooting the
Objections to that extent.
Otherwise, I overrule the Objections as to the Paquette Deposition designations without
prejudice to C&M’s renewal of its objections at trial should Moark wish to use portion(s) of the
Paquette Deposition for another purpose, such as impeachment or rebuttal. In that event, Moark
should call for a sidebar conference, during which I will hear argument and rule on any remaining
objections.
III. Conclusion
For the foregoing reasons, I SUSTAIN C&M’s Objections in part, with respect to Moark’s
offer into evidence of the Paquette Deposition pursuant to Federal Rule of Civil Procedure
32(a)(4), deem the Objections MOOT in part, as to those objections that Moark does not contest,
and otherwise OVERRULE the Objections without prejudice to C&M’s renewal of its remaining
objections, if any, at trial.
Dated this 13th day of June, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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