Global Epoint, Inc. v. Gtech Corporation
Filing
88
MEMORANDUM AND ORDER denying 43 Motion to Take Second Deposition of Dennis Blazer. So Ordered by Chief Judge William E. Smith on 1/8/15. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
GLOBAL EPOINT, INC.,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 11-197 S
)
GTECH CORPORATION,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff
permission
to
Global
conduct
ePoint,
a
second
Inc.
(“Global”)
deposition
of
witness
Blazer, who will not be available to testify at trial. 1
43.)
For
the
reasons
set
forth
below,
requests
Global’s
Dennis
(ECF No.
motion
is
DENIED.
I.
Facts and Procedural Posture
The facts of this complex commercial dispute are addressed
in
painstaking
concerning
the
detail
parties’
in
the
cross
Court’s
motions
Memorandum
for
summary
and
Order
judgment.
Global ePoint, Inc. v. GTECH Corp., C.A. No. 11-197 S, 2014 WL
5771801 (D.R.I. Nov. 5, 2014).
1
For present purposes, a brief
Global has requested permission to conduct a “trial
deposition” of Blazer. No matter the title attached to it, this
remains a request to conduct a second deposition of the same
witness.
sketch of the pertinent procedural history of this motion will
suffice.
On
March
25,
2013
the
parties
took
the
videotaped
deposition of Dennis Blazer – the former chief financial officer
of Interlott Technologies, Inc. (“Interlott”).
Interlott is the
predecessor to Defendant GTECH Corporation (“GTECH”).
Blazer
lives in Ohio and is not currently employed by GTECH.
At the
time
Global
pages
of
deposed
discovery.
Blazer,
GTECH
had
Subsequent
to
produced
that
nearly
8,000
deposition,
GTECH
produced an additional 7,500 pages before discovery closed in
December 2013. Some of the documents produced after Blazer’s
deposition relate directly to Blazer.
Now,
Global
requests
permission
to
depose
Blazer
again.
Global argues that this deposition should be permitted because
it would substitute for trial testimony and as such would not be
a second discovery deposition.
Blazer’s
should
first
be
used
deposition,
at
trial.
2
GTECH objects, arguing that
subject
to
According
specific
to
objections,
GTECH,
a
second
deposition of Blazer would be duplicative. 3
2
Depositions taken specifically for
referred to as de bene esse depositions.
3
trial
are
sometimes
The Court has considerable discretion when deciding
motions such as the instant application. Morrison v. Stephenson,
No. 2:06-cv-0283, 2008 WL 145017, at *2 (S.D. Ohio Jan. 10,
2008).
2
II.
Discussion 4
A deposition may be admitted in place of live testimony
where
a
witness
is
unavailable.
Fed.
R.
Civ.
P.
32(a)(4).
Here, Blazer lives in Ohio and may not be compelled to testify
in a trial in this Court.
Thus,
Blazer
is
Fed. R. Civ. P. 45(c)(3)(A)(ii).
unavailable,
and
his
deposition
would
admissible at trial subject to any exerted objections.
be
Daigle
v. Maine Med. Ctr., Inc., 14 F.3d 684, 691-92 (1st Cir. 1994)
(“Distance is the decisive criterion: so long as a witness is
shown to be more than one hundred miles from the place of trial,
the
admissibility
contingent
upon
unavailable.”).
of
a
deposition
showing
Global,
that
however,
testimony
the
does
.
witness
not
.
is
wish
.
is
not
otherwise
to
use
a
deposition of Blazer taken in March 2013 at trial, but seeks to
take a second deposition for that purpose.
Federal Rule of Civil Procedure 30 requires that a party
obtain leave of the court to depose a witness a second time in
the same case.
courts
tend
Fed. R. Civ. P. 30(a)(2)(A)(ii).
to
disfavor
repeat
4
depositions.
Generally,
Dixon
v.
The parties dispute whether Global’s request to take a
deposition of Blazer for trial came prior to the discovery
deadline. Because the Court determines that the deposition is a
second deposition of the same witness, for which there is no
cause, it need not address this issue.
The Court notes,
however, that Global began its efforts to take a second
deposition of Blazer before the close of discovery and was
delayed by GTECH in accomplishing this task.
3
CertainTeed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996).
Whether
a court should grant such a request depends on Federal Rule of
Civil
Procedure
26(b)(2).
This
rule
provides,
among
other
things, that discovery may be prohibited when it is duplicative.
Fed. R. Civ. P. 26(b)(2)(C)(i).
Some district courts have questioned which provisions of
Rule
30
apply
depositions.
to
trial
depositions
as
opposed
to
discovery
See, e.g., Marmelshtein v. City of Southfield,
Civil Action No. 07-CV-15063, 2010 WL 4226667, at *2 (E.D. Mich.
Oct. 21, 2010) (“[W]hich[,] if any[,] of the requirements of
Fed.R.Civ.P. 30(a)(2) apply to de bene esse depositions is not
always clear.”)
These courts, however, appear to be in accord
that leave of the court or agreement from opposing counsel must
be obtained before attempting to depose a witness a second time
for whatever purpose.
Id. at *2-3.
This conclusion tracks the requirements of Rule 26, since a
second deposition of the same witness risks duplicating efforts.
“The Federal Rules of Civil Procedure make no distinction for
use of a deposition at trial between one taken for discovery
purposes
and
one
taken
for
use
at
trial
(de
bene
esse).”
Morales v. New York Dep't of Labor, No. 06-CV-899(MAD), 2012 WL
2571292, at *2 (N.D.N.Y. July 3, 2012) (quoting George v. Ford
Motor Co., 2007 WL 2398806, at *11–13 (S.D.N.Y. 2007)).
Thus,
Blazer’s first deposition may be used in the same way that a
4
second de bene esse deposition would be used. 5
deposition
serves
the
preserving testimony.
function
of
uncovering
Blazer’s fact
information
and
Therefore, a second deposition would be
duplicative.
Here, Global attempts to avoid this conclusion by arguing
that
it
because
should
GTECH
deposition.
be
permitted
produced
some
to
depose
7,500
Blazer
documents
de
after
bene
esse
the
first
This alone, according to Global’s broad reading of
the law, provides good cause to permit a second deposition of
Blazer.
The
very
case
however, is contrary.
cited
by
Global
for
this
position,
See Morrison v. Stephenson, No. 2:06-cv-
0283, 2008 WL 145017, at *2 (S.D. Ohio Jan. 10, 2008).
The
district court in Morrison reasoned that “[t]ypically, if, after
a witness is deposed, new information comes to light relating to
the subject of that deposition, new parties are added to the
case, new allegations are made in pleadings, or new documents
are
produced,
these
new
the
witness
developments.”
may
be
Id.
re-deposed
The
with
Morrison
respect
court,
to
however,
makes clear that “the Court may deny leave to conduct a second
deposition
of
the
witness
even
if
relevant
documents
are
produced subsequent to the deposition if the party taking the
5
To be sure, there are circumstances under which a
distinction between fact depositions and trial depositions makes
logical sense. See Bouygues Telecom, S.A. v. Tekelec, Inc., 238
F.R.D. 413, 414 (E.D.N.C. 2006) (holding limit of 20 depositions
does not apply to de bene esse depositions).
5
deposition . . . chose to conduct the deposition prior to the
completion of document discovery.”
Id. 6
Here, Global made that
very decision, deposing Blazer prior to the production of all of
the documents in this case. It must now live with that decision.
III. Conclusion
For the reasons stated above, Plaintiff’s motion to conduct
a second deposition of Dennis Blazer is DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: January 8, 2015
6
The other case cited by Global provides no assistance to
its argument either. In Dixon v. CertainTeed Corp., 164 F.R.D.
685, 690 (D. Kan. 1996), the district court determined that
inadequate Rule 26 initial disclosures warranted permitting a
repeat deposition. Global has not called into question GTECH’s
Rule 26 disclosures.
6
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