Westerdahl et al

Filing 27

ORDER granting 15 Motion to Allow Use of Video Deposition of Medical Witness at Trial. Motion granted subject to outlined provisions. Deposition to be held September 8. Each parties' designated trial testimony by COB S eptember 9. Each parties' objections to designated trial testimony by noon on September 12. Defendant's Motion to Quash Contingent Notice of Video Deposition presented in objection (doc. no. 25) is denied. So Ordered by Judge Joseph N. Laplante. (jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Julie Westerdahl
and Steven Westerdahl
v.

Civil No. 10-cv-266-JL

Bruce I. Williams
PROCEDURAL ORDER
This personal injury action arises out of a bicycle
accident.

The plaintiffs, Julie and Steven Westerdahl, have

moved to allow them to use at trial the videotaped deposition of
a physician who treated Julie for injuries she sustained in the
accident, Dr. W. Bradley White.

Though the discovery cutoff has

passed and trial is scheduled to commence on September 7, 2011,
Dr. White’s deposition has yet to take place.

The plaintiffs,

however, have noticed it for September 8, 2011, in the event that
trial does not commence as scheduled (this court presently has a
number of other trials set to start that same day), because,
during the entirety of the week beginning September 12, Dr. White
will be out of state and more than 100 miles from the courthouse.
The defendant, Bruce I. Williams, does not dispute that,
should trial commence during the week of September 12, Dr. White
will be unavailable to testify, which would allow the use of his
deposition.

See Fed. R. Civ. P. 30(a)(4)(B).

Nor does Williams

dispute that, if the trial is in fact delayed until Dr. White
needs to travel out of state, then that would amount to “good

cause” to take Dr. White’s deposition so it could be used at the
trial, even though the discovery deadline has long passed.
Fed. R. Civ. P. 16(b)(4).

See

Instead, Williams, in his “partial

objection” to the plaintiffs’ motion, argues that they may seek
to elicit inadmissible expert testimony from Dr. White at the
deposition, so that proceeding with the deposition “without a
judicial referee present prejudices [Williams] both in the
introduction of previously undisclosed expert testimony into the
record and in requiring repeated arguments both before the video
stenographer and before the Court and unnecessary costs to
rightfully present those arguments from reaching the jury.”
As Williams appears to recognize, though, testimony elicited
at a deposition is not automatically admissible at trial simply
because the deposition is useable at trial under Rule 30(a).

To

the contrary, subject to the waiver rules set forth in Rule
30(d), “an objection may be made at hearing or trial to the
admission of any deposition testimony that would inadmissible if
the witness were present and testifying.”

Fed. R. Civ. P. 30(b).

So Williams will have the chance to object to the admission of
any “previously disclosed expert testimony,” or any other
arguably inadmissible testimony, at trial; it will not become
part of “the record” merely because it was given at the
deposition.

This approach–-making an objection to testimony on

the record at the deposition, then restating that objection when
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an adversary attempts to use that testimony at trial–-does
require “repeated arguments,” or at least repeated objections
(lengthy arguments to the stenographer at a deposition are
inevitably unavailing).

But that is the case every time a party

attempts to use a deposition at trial.

It is a function of Rule

30's operation, not of anything the plaintiffs are seeking to do
here, so the relief they seek will not “prejudice” Williams.
Williams also complains, with some justification, that
allowing a deposition for use at trial to take place on the eve
of trial will cause “video deposition costs and video editing
costs, both at a rushed pace.”

The way to deal with this,

however, is to put the costs of the deposition itself on the
plaintiffs (where they likely were anyway, since the plaintiffs
are the ones noticing the deposition, cf. Fed. R. Civ. P.
45(b)(1)) and to require each party to bear his or her own costs
of preparing the video excerpts of the testimony that he or she
wishes to present, after the court has ruled on any objections.
To facilitate this process, each party shall provide the
other with the page and line designations of the testimony he or
she wishes to use at trial by no later than the close of business
on September 9, 2011; each party shall provide the other with any
objections to the designated testimony, and file those
objections, together with the corresponding testimony, with the
court, by no later than noon on September 12, 2011; and the court
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will issue rulings on those objections by no later than the close
of business on September 12, 2011.

This schedule should allow

each side enough time to prepare, for broadcast to the jury
before the end of trial, an edited video of the admissible
testimony he or she wishes to present.
Accordingly, the plaintiffs’ motion to allow the use of Dr.
White’s deposition at trial (document no. 15) is GRANTED, subject
to the provisions on cost and the service and filing of
designations and objections just set forth.

The plaintiffs are

granted leave to take that deposition on September 8, 2011, as
noticed, in the event that trial in this matter will not commence
before then.

Insofar as Williams has moved to quash the

deposition notice (which, in violation of L.R. 7.1(a)(1), was
presented in the objection to the plaintiffs’ motion, rather than
a separate filing), that motion is denied.

SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

August 17, 2011

Andrew D. Dunn, Esq.
Elsbeth D. Foster, Esq.
Thomas J. Fay, Esq.

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