McDermott v. Liberty Maritime Corporation et al
Filing
175
ORDER denying 169 Motion for Reconsideration. Please see the attached memorandum and order. Ordered by Magistrate Judge Andrew L. Carter, Jr. on 7/6/2011. (Dharia, Kruti)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL McDERMOTT,
Plaintiff,
MEMORANDUM & ORDER
-against-
08-CV-1503 (KAM) (ALC)
LIBERTY MARITIME CORP., ALLIANCE
NEW YORK CITY LLC, AND LIBERTY
GLOBAL LOGISTICS, LLC,
Defendants.
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CARTER, UNITED STATES MAGISTRATE JUDGE.
Before the Court is Defendants’ motion to reconsider the portion of my May 13, 2011
Memorandum & Order (“May 13 M&O”) that precluded Defendants’ de bene esse 1 depositions
of the Virginia Beach Correctional Center personnel (“VA personnel”) for any other purpose
except to authenticate documents received by the center. For the following reasons, Defendants’
motion is DENIED.
I.
Background
On May 13, 2011, I addressed a number of arguments raised by both parties relating to
discovery violations. (Docket Entry No. 165.) For example, Defendants served several Fed. R.
Civ. P. 45 subpoenas without prior notice, untimely disclosed documents, and untimely served
Rule 45 subpoenas after the close of the June 15, 2010 factual discovery deadline. Specifically,
Defendants served a subpoena on the Virginia Beach Correctional Center requesting records
related to Plaintiff’s incarceration and his medical files. Allegedly, the medical records show
that while Plaintiff was in prison, he was evaluated and housed in the general population and he
1
A de bene esse deposition is one taken “in anticipation of a future need.” Black’s Law Dictionary (9th ed. 2009).
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did not receive special treatment or accommodation related to any vision impairment. Plaintiff
had requested, inter alia, that I preclude a number of documents received in response to
Defendants’ Rule 45 subpoenas. I denied the preclusion in my May 13 M&O, but admonished
Defendants for their conduct. I also ordered that the parties may not conduct further discovery
and that Defendants were not permitted to conduct depositions of the VA personnel for any other
purpose except to authenticate the medical records because they should have conducted those
depositions during the discovery period, but they negligently failed to do so. As set forth in
greater detail in my May 13 M&O, the parties extended discovery many times, they had two
years to conduct factual discovery, this case has been pending for over three years without delays
from any dispositive motion practice, and yet, the parties are nowhere near trial.
II.
Discussion
Defendants bring a motion to reconsider presumably under Fed. R. Civ. P. 60(b) and
Local Civil Rule 6.3. Rule 60(b) provides that courts may relieve parties from final judgments,
orders, or proceedings for, inter alia, mistake, inadvertence, surprise, excusable neglect, newly
discovered evidence, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b).
“The standard for granting [a motion for reconsideration] is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked-matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
A motion for reconsideration under Rule 60(b) rests within the sound discretion of the court and
“[is] generally granted only upon the showing of exceptional circumstances.” Mendell v.
Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff’d, 501 U.S. 115, 111 S. Ct. 2173, 115 L.Ed.2d 109
(1991). The motion “should not be granted where the moving party seeks solely to relitigate an
issue already decided.” Shrader, 70 F.3d at 257.
2
Defendants argue that I overlooked the fact that the proposed de bene esse depositions of
the VA personnel is to obtain trial testimony that would not otherwise be available because the
witnesses are beyond the subpoena power of the Court. They further argue that limiting the
scope of the depositions restricts the admission of what would otherwise be competent trial
testimony. Defendants propose that the Second Circuit recognizes the distinction between a de
bene esse deposition and a discovery deposition. Defendants deny that they are seeking to reopen discovery or obtain information of which they are unaware. They state that they have
already investigated the facts and they have spoken to the VA personnel, including the Health
Services Administrator. They further allege that much of the information is reflected in the
records and that testimony is required to explain the significance of the entries in the records.
Plaintiff opposes the motion to reconsider and argues that Defendants are attempting to
circumvent the discovery deadline and my May 13 M&O by characterizing these third-party
depositions as depositions to be used for trial purposes only that can be taken after the discovery
deadline and presumably, anytime before the date of trial. They also argue that the information
Defendants possess should have been disclosed during the discovery period and this is another
example of Defendants concealing information that they otherwise have an obligation to disclose
under the federal rules.
I will admit that there is indeed some confusion among the district courts in New York
whether a de bene esse deposition may proceed after the close of discovery. See Kingsway Fin.
Servs., Inc. v. Pricewaterhouse-Coopers LLP, No. 03-CV-5560, 2008 WL 5423316, at *2
(S.D.N.Y. Dec. 31, 2008) (noting the conflict). Our circuit has never addressed the issue and
there is a dearth of case law in New York concerning the topic.
Fed. R. Civ. P. 32(a) governs the uses of depositions in trial. In Manley v. AmBase
Corp., 337 F.3d 237, 247 (2d Cir. 2003), the circuit held that Fed. R. Civ. P. 32(a) “draws no
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distinction between depositions taken for purposes of discovery and those taken for use at trial.”
See also Wolf v. James Miller Marine Servs., Inc., Nos. 08-CV-3636, 08-CV-4799, 2010 WL
2606469, at *3 (E.D.N.Y. Jun. 21, 2010). The lower court in Manley permitted the parties to
depose the defendant’s former chairman “once as part of the discovery process and again
pursuant to a de bene esse proceeding ordered by the court when it appeared that the eighty-year
old California resident would not travel to New York for trial,” the latter deposition being one
taken “in anticipation of a future need.” Manley, 337 F.3d at 247.
In RLS Associates, LLC v. United Bank of Kuwait PLC, No. 01-CV-1290, 2005 WL
578917, at *7 (S.D.N.Y. Mar. 11, 2005), the court allowed the de bene esse deposition of the
defendants’ key witness to occur after the close of discovery. There, the witness was a former
employee of the defendants and during the litigation, he moved from New York to Dubai. See
id. at *5. The witness was unwilling to travel to NY to give live testimony. See id. The court
allowed the deposition to take place de bene esse because it was clear that the deposition was to
preserve testimony and there was no need for the defendants to take a deposition of their own
witness during the discovery period. See id. at *7. In lieu of live testimony, the defendants were
allowed to present the examination by video, in part because “contemporaneous transmission of
[the witness’] testimony would be highly inconvenient, due to the large time difference between
New York and Dubai.” Id. at *7-8. In Kingsway Fin. Servs., the party applied to the court for
leave to take de bene esse depositions after the discovery period. 2008 WL 5423316, at *2. The
court said there was no controlling authority in the circuit about the issue and was inclined to
allow the parties to take the de bene esse depositions after the discovery period, but denied the
motion because the plaintiff did not specify the names of the witnesses or whether the witnesses
have already been deposed. See id.
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The cases I just described are distinguishable from the issues here. This is not a case in
which the necessity to depose the VA personnel results from the need to preserve testimony that
the witnesses would otherwise have given at trial, based on unforeseen events arising after the
close of discovery. The witnesses are not Defendants’ employees that became unavailable after
the discovery deadline. Defendants knew of Plaintiff’s incarceration since March 24, 2009,
almost fifteen months before the close of factual discovery and they waited until the summer of
2010 to serve subpoenas requesting documents. They had sufficient notice during the discovery
period that these witnesses were unavailable for trial purposes and they could have sought
enforcement of a subpoena in the appropriate district under Rule 45(a)(2)(B) during the
discovery period. Such a deposition could then have been available for use at trial under Rule
32. Defendants negligently failed to take the depositions at the appropriate time. See Chrysler
Intern. Corp. v. Chemaly, 280 F.3d 1358, 1362 n. 8 (11 Cir. 2002) (“[P]arties who delay in
taking a needed deposition and who assume that a district court will draw (when the Rules do not
and if the pretrial order does not) a distinction, for pretrial scheduling purposes, between
different kinds of depositions assume a risk: they cannot count on the trial court’s allowing a [de
bene esse] deposition to be taken closer to the trial date.”).
Nor is this a case where a deposition had been taken during the discovery period and
Defendants wish to take another deposition that is specifically tailored to be used as trial
testimony. Defendants argue that had the witnesses been in the jurisdictional limit of the court,
they could simply produce these witnesses at trial. Defendants forget, again, that they had an
obligation to supplement their automatic disclosures pursuant to Fed. R. Civ. P. 26(e)(1)(A) in a
timely manner after they obtained the information. They state in their motion that they have the
names of the personnel and they concluded their investigation. However, it appears they have
not disclosed these witnesses to Plaintiff. Untimely disclosure appears to be a repetitive
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problem. Defendants may argue that these depositions are not for discovery purposes because
they have already discovered the information, but they disregard that Plaintiff would have
wanted to conduct discovery concerning these witnesses. Without disclosing the witnesses under
Fed. R. Civ. P. 26(a)(1)(A)(i), Defendants wrongfully presume that they would be allowed to
present the witnesses at trial. Had Defendants timely disclosed the names of the witnesses and if
Plaintiff failed to depose them during the discovery period, Defendants would have a stronger
argument justifying a need to take the depositions after the close of discovery.
In George v. Ford Motor Co., No. 03-CV-7643, 2007 WL 2398806 (S.D.N.Y. Aug. 17,
2007), the plaintiff wanted to take the de bene esse depositions of the defendant’s former
employee outside of the discovery period. Similar to Defendants here, the plaintiff argued that
they were not seeking to reopen discovery, but they wanted to take the deposition for trial
purposes only. It argued that it “they hardly need to cite precedent before issuing a subpoena
directing an out-of-state fact witness to sit for a de bene esse deposition any more than they
would need special leave of court to subpoena [the witness] to appear for trial in the Southern
District were he residing in Manhattan.” 2007 WL 2398806, at *11. The district court denied
the request, holding that “both discovery and de bene esse depositions ‘are governed by the
scheduling order’ set by the Court, and may not be conducted after the close of discovery absent
good cause to modify that order.” Id. at *12 (citing Sanofi-Synthelabo v. Apotex Inc., No. 02CV-2255, 2005 WL 469594, at *1 (S.D.N.Y. Feb. 18, 2005) (adhered to on rehearing 2005 WL
816267, at *1-2 (Mar. 25, 2005))). In Sanofi-Synthelabo, the defendant wanted to take the de
bene esse deposition of a non-party seventeen months after the close of factual discovery. 2005
WL 469594, at *1. The court held that “[d]epositions of fact witnesses who reside beyond the
subpoena range of this Court were to have been conducted prior to the close of fact discovery,
not long afterward.” Id. It noted “the Federal Rules of Civil Procedure make no distinction
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between depositions taken for the purpose of discovery and those taken de bene esse - both types
of depositions are governed by the scheduling order.” Id; see also Donk v. Miller, No. 99-CV3775, 2000 WL 218400, at *4-5 (S.D.N.Y. Feb. 24, 2000) (denying de bene esse depositions
after the close of discovery because the party had a full and fair opportunity to take those
depositions during the discovery period but counsel chose not to conduct them during discovery).
There is no difference between the depositions proposed here as opposed to typical Rule
45 depositions of non-parties. Depositions are generally devices for discovery. But in the right
circumstances, almost all depositions potentially could be used as trial testimony. See Fed. R.
Civ. P. 32(a). With some exceptions, all witnesses residing outside 100 miles of the district are
unaffected by the court’s jurisdiction and if we were to accept Defendants’ theory, that means all
such depositions and documents can be requested outside the discovery period and loosely
characterized as “trial testimony” merely because counsel did its own investigation before the
request. It is well settled that Rule 45 subpoenas must be served during the discovery period.
See McKay v. Triborough Bridge and Tunnel Authority, No. 05-CV- 8936, 2007 WL 3275918
(S.D.N.Y. Nov. 5, 2007) (quashing subpoenas that sought trial exhibits because it was served
after the discovery deadline) (citing cases); see also Dodson v. CBS Broadcasting, Inc., No. 02CV-9270, 2005 WL 3177723, at *1 (S.D.N.Y. Nov. 29, 2005) (“While Rule 45 can be used to
subpoena documents to be introduced at trial as trial exhibits, the need to do so should be limited
because of the liberal federal pretrial discovery rules.”).
Defendants further argue that the May 13 M&O decision is inconsistent because Plaintiff
is allowed to take de bene esse depositions of his treating physicians. I issued an order on
January 24, 2011 allowing the parties to take the depositions of the treating physicians closer to
trial because of Plaintiff’s continuous medical treatment. Had Defendants needed the
information from the treating physicians during the discovery period or shortly thereafter, they
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certainly could have noticed the physicians or applied to the Court. I would have resolved any
objections to the deposition. The treating physicians are outside of the Court’s jurisdiction,
similar to the VA personnel. Had the parties taken the depositions during the discovery period,
the parties could have used that deposition for trial purposes under Rule 32(a), but the testimony
would be outdated and incomplete because of Plaintiff’s ongoing treatment. It made practical
sense to wait closer to the trial date to depose the physicians rather than subject the physicians to
multiple depositions.2 I allowed the deposition of Dr. Schatz to occur after the discovery
deadline because I was not notified until January 5, 2011 that treatment was complete. I then
ordered the deposition to occur by March 1, 2011, but because of some confusion, the deposition
was never taken. I am reinstating that order and the deposition of Dr. Schatz shall occur no later
than September 6, 2011 because there is no reason to delay further the deposition.
Defendants also point out that de bene esse depositions are common in maritime practice.
This is because many of the employees in the maritime industry are indeed unavailable for trial
purposes and their schedules are difficult to coordinate because their occupation requires them to
be out at sea. It makes sense that both parties would accommodate maritime personnel and at
times, the deposition has to be taken outside of the discovery period. Again, this is not the case
here. The VA personnel are located in one region and their schedules do not require them to
travel around the world. Defendants knew since March 2009 that the personnel would be
unavailable for trial purposes. Defendants also argue that discovery had been extended because
Plaintiff amended his complaint in September 2009 to add allegations of maintenance and cure
violations. The additional claims in the amended complaint did not change their strategy
towards the VA Correctional Center because there is minimal relation between the information
2
I agree with Defendants that Plaintiff should have made the request earlier, but Defendants also made no effort to
depose those physicians during the discovery period.
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obtained from the center and Plaintiff’s allegations that Defendants violated their maintenance
and cure obligations. If anything, the amended complaint afforded Defendants even more time
to conduct factual discovery because originally, discovery was to conclude on June 30, 2009.
Finally, Defendants argue that they have shown good cause to proceed with the depositions. I
disagree. Discovery needs to end and it has ended.
I have no issue with the parties conducting de bene esse depositions outside of the
discovery period so long as the parties agree to relieve the witnesses from coming to trial, the
Court is made aware of these depositions, and the parties had a full and fair opportunity to
conduct discovery of the witnesses during the discovery period. At this point, the only
anticipated de bene esse depositions are those of the treating physicians.
III.
Conclusion
For the reasons specified above, Defendants’ motion to reconsider a portion of my May
13, 2011 Memorandum & Order is DENIED.
SO ORDERED
Dated: July 6, 2011
Brooklyn, New York
___________________/s/ ALC______________
ANDREW L. CARTER, JR.
UNITED STATES MAGISTRATE JUDGE
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