Chesapeake Exploration LLC et al v. BP America Production Company
ORDER granting in part and denying in part 136 Plaintiff BP America Production Company's Motion to Strike Defendants' Specific Deposition Designations (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 2/15/2013. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BP AMERICA PRODUCTION COMPANY,
CHESAPEAKE EXPLORATION, LLC, et al.,
Case No. CIV-10-519-M
Before the Court is the Motion to Strike Defendants’ Specific Deposition Designations by
Plaintiff BP America Production Company, filed January 31, 2013. Defendants’ Response to
Plaintiff’s Motion to Strike Defendants’ Deposition Designations was filed on February 4, 2013.
Plaintiff seeks an Order from the Court striking defendants’ deposition designations of plaintiff’s
witnesses Brandon A. Kastman and Tim Harrington.
Plaintiff BP America Production Company (“BP”) contends pursuant to a non Rule 30(b)(6)
notice, Brandon A. Kastman’s (“Kastman”) oral deposition was taken by defendant on January 12,
2013. During his deposition Kastman testified he was employed by plaintiff as a project manager
in the North American gas business development group. See Exhibit 3 - BP’s Motion in Limine Kastman’s deposition transcript, pg. 4. BP also contends that on January 13, 2013, pursuant to a non
Rule 30(b)(6) notice, the oral deposition of Tim Harrington (“Harrington”), BP’s regional vice
president was also taken. BP contends subsequent to the exchange in December 2012 of the parties’
witness list, BP agreed to produce Harrington and Kastman at trial. BP contends in its Motion to
Strike that both Harrington and Kastman will appear and testify at trial. BP contends Federal Rule
of Civil Procedure 32 permits the use at trial of the deposition testimony of an “unavailable witness”
in lieu of that witness’s live testimony. See Fed. R. Civ. P. 32(a)(4).
On January 24, 2013, defendants filed specific designations of both Harrington and
Kastman’s deposition testimony to be introduced during trial. BP objects to the introduction of
Harrington and Kastman’s deposition testimony during trial because both are available and the
deposition testimony would likely be cumulative or repetitive testimony if presented during trial.
BP also seeks to strike Harrington and Kastman’s deposition testimony because neither witness was
noticed as a Rule 30(b)(6) designee and at the time of his deposition Kastman was not an officer,
director, or managing agent, or designee of BP. Defendants argue, even if both witnesses appear
at trial, because Harrington is an officer of BP, the deposition of Harrington may be used during trial
for any purpose.
Fed. R. Civ. P. 32(a)(3) provides:
Deposition of Party, Agent, or Designee. 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).
Upon review of the parties’ submissions, the Court finds that BP’s motion to strike should
be granted in part and denied in part. Specifically, because at the time of his deposition Tim
Harrington was an officer of BP, according to Rule 32(a)(3),defendants should be allowed to use his
deposition during trial for any purpose. The Court also finds that defendants have failed to sustain
their burden of proving the deposition testimony of Kastman is admissible under Rule 32. It is not
disputed that Kastman will appear and testify at trial. As such, Kastman is not unavailable as
defined in Rule 32. Additionally, the Court finds that the introduction of the deposition testimony
of Kastman, “an available” witness, would be cumulative and unnecessary.
For the above reasons the Court GRANTS IN PART and DENIES IN PART the Motion to
Strike Defendants’ Specific Deposition Designations by Plaintiff BP America Production Company
[docket no. 136]. As set forth herein, BP’s objection to the testimony by deposition of Tim
Harrington is overruled as authorized by Rule 32(a)(3). BP’s objection to the testimony by
deposition of Brandon A. Kastman is sustained because he is not unavailable and deposition
testimony would likely be cumulative.1
IT IS SO ORDERED this 15th day of February, 2013.
If Mr. Kastman does not appear, the Court will re-visit the submission of the designated
deposition testimony during trial.
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