Echevarria-Soto v. Edwards Lifesciences Technologies Sarl, LLC

Filing 7

MEMORANDUM AND ORDER re 3 Motion for Reconsideration: DENIED without prejudice. Signed by Judge Francisco A. Besosa on 11/07/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROBERTO ECHEVARRIA-SOTO,
Petitioner,
Misc. No. 14-362 (FAB)

v.
EDWARDS LIFESCIENCES TECHNOLOGY
SARL, LLC,
Respondent.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court is respondent Edwards Lifesciences Technology
Sarl, LLC (“Edwards”)’s motion to reconsider the Court’s order
granting petitioner permission to take a deposition pursuant to
Federal Rule of Civil Procedure 27(a)(1) (“Rule 27(a)”) and to
quash the Rule 27 petition.

(Docket No. 3.)

For the reasons

discussed below, the Court DENIES respondent’s motion to reconsider
and to quash.
I.

Background
On September 25, 2014, petitioner Roberto Echevarria-Soto

moved the Court for permission to take an oral deposition regarding
an anticipated suit pursuant to Rule 27. (Docket No. 1.) In short,
petitioner indicated that once he received a right to sue letter
from the Department of Labor, he intended to initiate a civil
action

against

respondent

discrimination based on age.

Edwards

alleging

Id. at p. 2.

employment

Alberto Cortes — a

Miscellaneous No. 14-362 (FAB)

2

significantly younger employee who petitioner contends respondent
hired to replace him — is a material witness to petitioner’s
intended cause of action.

Id. at p. 3.

Because Cortes is in the

military and was scheduled to deploy to Iraq in mid-October 2014,
petitioner sought to secure his testimony before Cortes became
unavailable.

Id.

October 3, 2014.

The Court granted petitioner’s request on

(Docket No. 2.)

Respondent moved to reconsider the Court’s order and to quash
the Rule 27 petition on October 22, 2014.1
II.

(Docket No. 3.)

Discussion
Respondent argues (1) that all efforts to depose Cortes are

moot, and (2) that Edwards does not have a legal duty to produce
Cortes as a witness because Cortes was placed on military training
leave at a classified location beginning in October 2014.
No. 3 at pp. 2-3.)
A.

(Docket

The Court addresses each argument in turn.

Mootness
Rule 27 requires that a petition to perpetuate testimony

show “that the petitioner expects to be a party to an action
cognizable in a United States court but cannot presently bring it
or

cause

it

to

be

brought.”

Fed.

R.

Civ.

P.

27(a)(1)(A).

Petitioner originally indicated that he could not bring suit
because he had not yet received a right to sue letter from the

1

Respondent contends that it did not receive the Notice of
Deposition and copy of petitioner’s Rule 27 petition until October
16, 2014. Id. at p. 2.

Miscellaneous No. 14-362 (FAB)
Department of Labor.

3

(Docket No. 1 at p. 2.)

Edwards now

contends, however, that the Department of Labor issued a right to
sue letter on October 1, 2014.

(Docket No. 3 at p. 3.)

Because it

is no longer true that petitioner “cannot presently bring” suit,
Edwards urges, this case no longer falls under the auspices of Rule
27.

Id.
Because the petition satisfied Rule 27’s requirements at

the time it was filed, the Court sees no reasons to reconsider its
prior order or to quash the petition at this time.
The Court is also unpersuaded by Edwards’s alternative
argument that Cortes’s testimony is not necessary to a potential
age discrimination claim. Cortes’s testimony may reveal information
relevant to pretext.

Pursuant to the burden-shifting framework

applied to employment discrimination cases, “[a] plaintiff must be
afforded the

opportunity

to

prove

by

a

preponderance

of

the

evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.”
Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 447-48 (1st Cir.
2009) (internal quotation marks and citation omitted).

By either

refuting or affirming Edwards’s offered legitimate reasons for
terminating petitioner, Cortes’s testimony may be essential to an
element of petitioner’s claim.

Petitioner has demonstrated a need

for Cortes’s testimony “that cannot easily be accommodated by other

Miscellaneous No. 14-362 (FAB)

4

potential witnesses.” Penn Mut. Life Ins. Co. v. United States, 68
F.3d 1371, 1375 (D.C. Cir. 1995).
Rule 27 applies to “situations where, for one reason or
another, testimony might be lost to a prospective litigant unless
taken immediately, without waiting until after a suit or other
legal proceeding is commenced.”
91 (S.D.N.Y. 1943).

Petition of Ferkauf, 3 F.R.D. 89,

Because the Court remains “satisfied that

perpetuating [Cortes’s] testimony may prevent a failure or delay of
justice,” Fed. R. Civ. P. 27(a)(3), the Court DENIES respondent’s
motion.
B.

Edwards Cannot Produce Cortes
Next,

witness, Cortes.

Edwards

protests

that

(Docket No. 3 at p. 5.)

it

cannot

produce

the

Edwards represents that

in July of 2014, Edwards received a “Letter of Selected Deployment
Position,” indicating that Cortes had been tasked for deployment.
Id.

Edwards subsequently placed Cortes on leave for military

training/duty beginning in October of 2014.

Id.

Edwards contends

that it cannot be compelled to produce a witness over whom it has
no control, and petitioner has not produced any legal authority
indicating the contrary.

Id.

Edwards similarly has not produced

legal authority indicating that its duty to produce its employee
has been discharged.

Noticeably, neither party has indicated

Cortes’s deployment date, or whether his leave began before or
after the Court’s prior order.

In the absence of any facts or

Miscellaneous No. 14-362 (FAB)

5

legal authority indicating that Edwards cannot produce Cortes for
a deposition, the Court declines to reconsider its earlier order.
Should Edwards provide the Court with unclassified deployment
documents or orders, however, the Court may, at that time, reach a
different conclusion.
III. Conclusion
For the reasons articulated above, the Court DENIES WITHOUT
PREJUDICE respondent’s motion.

(Docket No. 3.)

IT IS SO ORDERED.
San Juan, Puerto Rico, November 7, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE