Owner Operator Independent Drivers Association Inc et al v. Comerica Bank

Filing 131

ORDER finding as moot 128 Motion in Limine; finding as moot 129 Motion for Reconsideration. Signed by Judge Algenon L. Marbley on 10/3/2011. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OWNER-OPERATOR INDEPENDENT
DRIVERS ASSOCIATION, CARL HARP
and MICHAEL WISE, as Representatives
of the Class and THE CERTIFIED CLASS
OF OWNER-OPERATORS, Case No.
C2-97-740 United States District Court
for the Southern District of Ohio,
Plaintiffs,
v.
COMERICA BANK,
Defendant.

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Case No. 05 -CV-0056
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

OPINION AND ORDER
This matter is before the Court regarding Defendants’ stated intent to offer the videotaped
deposition of counsel for Plaintiffs, Ms. Joyce Mayers, at trial despite Ms. Mayers’s availability
for live testimony. On Friday, September 30, 2011, at the Final Pretrial Conference, the Court
provisionally ruled that Defendants would be permitted to present the videotaped deposition.
However, upon further review, under the Federal Rules of Civil Procedure, Defendants are not
permitted to offer Ms. Mayers’s deposition where she is available for live testimony.
Rule 32 states, in relevant part:
An adverse party may use for any purpose the deposition of a party or anyone who, when
deposed, was the party's officer, director, managing agent, or designee under Rule
30(b)(6) or 31(a)(4).
Fed. R. Civ. P. § 32(a)(3).

If the witness is not within one the categories of Rule 32(a)(3), however, the deposition
can only be used at trial for impeachment purposes, Rule 32(a)(2), or if the witness is unavailable
under Rule 32(a)(4). Ms. Mayers will be present at trial, and Defendants seek to offer her
deposition for all purposes, not just impeachment. Therefore, the only way Defendants can be
allowed to use Ms. Mayers’s deposition at trial in lieu of her live testimony is if she fits into one
of the categories under Rule 32(a)(3).
Under Rule 32(a)(3), Ms. Mayers must be either a party, the officer, director or managing
agent of a party, or the party’s Rule 30(b)(6) designee. Ms. Mayers is not an officer or director
of Plaintiffs. As explained below, she is also neither a 30(b)(6) designee, nor a managing agent
of Plaintiffs.
Defendants’ “Notice of 30(b)(6) Deposition” called for the designation of a person most
knowledgeable from “The Cullen Firm, as counsel for plaintiffs.” Mayers Deposition Exh. 7, p.
1. Therefore, although Ms. Mayers acknowledged at her deposition that she understood herself
to be “designated as plaintiffs’ 30(b)(6) witness in this matter,” Deposition of Joyce Mayers, p.
11, the Rule quite clearly states that only 30(b)(6) designees of parties may have their
depositions offered for any reason by an adverse party at trial. Ms. Mayers is outside counsel for
parties, and was designated by The Cullen Law Firm pursuant to Defendants’ deposition notice.
She was simply not designated by any of the Plaintiff companies or individuals as their person
most knowledgeable.
The question then becomes whether Ms. Mayers is considered the Plaintiffs’ “managing
agent.” Fed. R. Civ. P. § 32(a)(3). She is not. In the Sixth Circuit, for Ms. Mayers to be a
“managing agent” of a party, she must be: (i) generally, an employee, (ii) with significant
discretionary autonomy in her role, (iii) whose interests are generally identified with those of the

party, and (iv) gives testimony on behalf of the party. See Jones v. John Hancock Mut. Life Ins.
Co., 416 F.2d 829, 833 (6th Cir. 1969).
Ms. Mayers in not an employee of the Plaintiffs. She is their retained outside trial
counsel. While she does exercise significant discretion within that role, her interests are
certainly not directly aligned with her clients. She may be a zealous advocate for her clients’
interests, but she and her firm are not similarly subjected to any liability in this litigation. Her
testimony in this matter will primarily pertain to what she and her associates knew in her role as
outside counsel, and she cannot speak generally on behalf of Plaintiff entities or individuals
beyond that limited scope. Ms. Mayers, therefore, is not a managing agent of Plaintiffs under
Rule 32.
Therefore, since Ms. Mayers will not be unavailable for testimony, Defendants have no
basis for presenting her videotaped deposition in lieu of her live testimony at trial. See Fed. R.
Civ. P. § 32(a)(4).
For the reasons stated herein, Defendants are hereby prohibited from offering the
videotaped deposition of Ms. Mayers at trial. Ms. Mayers’s testimony must be elicited through
live examination.

IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: October 3, 2011