Neill et al v. State Farm Fire & Casualty Company et al

Filing 159

ORDER granting in part and denying in part 156 Motion to Compel. Signed by Honorable Timothy D. DeGiusti on 1/13/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NATHANIEL NEILL and ALICIA NEILL, )
)
Plaintiffs,
)
)
v.
)
)
STATE FARM FIRE AND CASUALTY )
COMPANY,
)
)
Defendant.
)

Case No. CIV-13-627-D

ORDER
Before the Court is Plaintiffs’ Motion to Compel Live Attendance of State Farm
Witnesses at Trial [Doc. No. 156]. Plaintiffs ask the Court either to require Defendant to
produce nine potential witnesses at trial to testify in Plaintiffs’ case in chief pursuant to an
alleged agreement of counsel, or to authorize Plaintiffs to take trial depositions and file
designations of deposition testimony after the deadline previously set by the Court.
Defendant opposes the Motion, disputing Plaintiffs’ understanding of prior communications
between counsel and Plaintiffs’ position regarding the Court’s subpoena power.1 Upon
consideration of the issues presented for decision, the Court finds that a miscommunication
between counsel occurred and that it should be easily sorted out with direction from the
Court.
First, part of Plaintiffs’ dilemma has been created by the parties’ failure to comply
with the requirement of Fed. R. Civ. P. 26(c)(3)(A)(i) and the Scheduling Order to identify

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Defendant also purports in its response brief to request the imposition of sanctions under Fed. R.
Civ. P. 11. This request is procedurally improper under both LCvR7.1(c) and Rule 11(c)(2) and is, therefore,
disregarded.

separately the witnesses a party intends to present and those it may call if needed.2 To the
extent Plaintiffs wish to utilize a witness in their case in chief that Defendant intends to call
in its defense, the Court’s customary trial practice avoids the problem of one side having
control of a witness whose testimony is relevant to both sides of a case. The Court
customarily has the witness take the stand only once and permits the parties to present all
relevant testimony from the witness at that time. In keeping with this practice, the Court will
direct Defendant to comply with its disclosure requirement and file a list of witnesses whom
it will call to testify at trial. Further, the Court will require Defendant to make these
witnesses available to Plaintiffs during their case in chief, and the Court will discuss with
counsel at the pretrial conference the procedures that will be followed during the trial to
insure the orderly presentation of evidence. This may eliminate some of the problem.
Second, Defendant correctly states that it has no obligation to present a particular
witness at trial for Plaintiffs’ convenience, although this is a matter usually resolved through
reasonable cooperation among counsel. To the extent Plaintiffs wish to call a witness that
will not voluntarily appear for trial, Defendant must provide the necessary information for
the issuance of subpoenas to witnesses that it previously disclosed without providing an
address other than its counsel’s offices.

This disclosure was also required by

Rule 26(a)(3)(A)(i). Accordingly, as to the witnesses that Defendant does not intend to call
and for whom Plaintiffs lack addresses, the Court will direct Defendant to provide the

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The Scheduling Order [Doc. No 16] expressly states: “The listing of witnesses and exhibits shall
separately state those expected to be called or used and those which may be called or used if the need arises.”

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necessary information. Plaintiffs’ counsel can then prepare trial subpoenas and take the
necessary steps for service of witnesses within the subpoena power of the Court.
Third, as to any of the nine witnesses listed in Plaintiffs’ Motion whom Defendant
does not intend to call, and who are beyond the Court’s subpoena power but are necessary
to the presentation of Plaintiffs’ case, Plaintiffs will be permitted to file a late designation of
deposition testimony to be used at trial. If any such witness was not previously deposed, the
Court will also permit Plaintiffs to take a trial deposition of that witness.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Live Attendance
of State Farm Witnesses at Trial [Doc. No. 156] is GRANTED in part and DENIED in part,
as set forth herein. Both parties are directed to file within 7 days of this Order a list of trial
witnesses that identifies separately the witnesses whom they will call to testify in their
respective cases in chief and the witnesses whom they may call if needed. For any witness
listed as a “will call” trial witness by both parties who is within Defendant’s control (as
indicated by Defendant’s previously disclosing only an address of its counsel), Defendant
will be expected to present the witness at trial to testify according to the trial schedule to be
discussed at the final pretrial conference.
IT IS FURTHER ORDERED that for any of the nine witnesses listed in Plaintiffs’
Motion who is subsequently listed as a trial witness by Plaintiffs but not by Defendant,
Defendant shall provide to Plaintiffs’ counsel within 7 days from the date of this Order, the
witness’s home address and telephone number if that information was not previously
provided.
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IT IS FURTHER ORDERED that as to any witness whom Plaintiffs intend to call
who will not appear voluntarily and who is beyond the subpoena power of the Court,
Plaintiffs are authorized to file a designation of deposition testimony within 14 days from the
date of this Order. Defendant shall file objections to Plaintiffs’ designations and its counterdesignations within 7 days thereafter. Plaintiffs shall file objections to Defendant’s counterdesignations, if any, within 7 days thereafter. If the witness has not been deposed, the parties
shall make reasonable efforts to schedule the deposition by agreement; otherwise, within
14 days from the date of this Order, Plaintiffs shall file a motion to compel the deposition to
be taken.
IT IS SO ORDERED this 13th day of January, 2017.

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