Latson v. Clarke et al

Filing 232

OPINION and ORDER denying 156 Motion to Use Deposition Testimony of Unavailable Witness at Trial. Signed by Judge James P. Jones on 5/18/18. (flc) Modified on 5/18/2018 to add the "opinion" language to the docket text (flc).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
REGINALD CORNELIUS LATSON,
Plaintiff,
v.
HAROLD W. CLARKE, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 1:16CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Caitlin Marie Kasmar, Katherine Katz, John B. Williams III, and Timothy J.
Coley, BuckleySandler LLP, Washington, D.C., and Elliot M. Mincberg,
Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Washington,
D.C., for Plaintiff; Laura Maughan, Office of the Attorney General, Richmond,
Virginia, and Jeff W. Rosen, Pender & Coward, PC, Virginia Beach, Virginia, for
Defendants.
The plaintiff has moved for leave to allow the use of his videotaped
deposition at trial in place of his personal attendance on the ground that he is
unavailable within the meaning of Federal Rule of Civil Procedure 32(a)(4). I will
deny that request, but will permit the plaintiff to testify at trial through a live video
appearance.
The plaintiff, a former inmate with the Virginia Department of Corrections
(“VDOC”), is alleged to suffer from Autism Spectrum Disorder and intellectual
disability. He asserts in this action that he was denied proper medical treatment for
his mental conditions and subjected to other abusive conduct, lack of due process,

and retaliation during his incarceration for eight months at the Marion Correctional
Treatment Center (“MCTC”), a VDOC facility. In 2015 he was conditionally
pardoned by the Governor of Virginia. He currently resides in a private treatment
facility located in Orlando, Florida, some 600 miles away from this courthouse.
Latson’s deposition in this case was taken by the defendants on September
25, 2017, in Orlando. During that deposition, Latson was unable to recall many
details of his alleged mistreatment at MCTC. In the present motion, Latson’s
attorneys assert that since Latson is more than 100 miles from the place of trial,
Fed. R. Civ. P. 32(a)(4)(B), or alternatively, is unavailable to testify at trial due to
his “illness [or] infirmity,” Fed. R. Civ. P. 32(a)(4)(C), his deposition may be used
at trial in lieu of his actual appearance. However, they do not want to use the
deposition taken in 2017. Instead, they propose that at some time close to trial,
they take a second videotaped deposition of Latson for use at the trial.
The plaintiff’s motion is supported by declaration of a licensed clinical
psychologist who has evaluated Latson and opines that it would produce “negative
consequences” to Latson’s “mental well-being” to travel to Virginia and attend the
trial. Mem. Supp. Pl.’s Mot. Ex. A, Hamlett Decl. 2, ECF No. 157-1. In addition,
the program coordinator at the treatment facility in Florida has submitted a
declaration stating that there would be “negative impacts” on Latson to be away

-2-

from his treatment regime “for any extended period of time.” Id., Ex. B, Hamilton
Decl. 2, ECF No. 157-2.1
The defendants oppose the motion on the ground that live testimony should
be preferred, in order to allow the jury a better opportunity to judge Latson’s
credibility, which they contend is an important issue in the case.2

As an

alternative, the defendants suggest a live video appearance by the plaintiff from
Orlando. The plaintiff’s attorneys, in opposition to that alternative, explain that
Latson is prone to pause and to go “on tangents” and talk about things not asked of
him. The plaintiff’s attorneys contemplate “condensing” the proposed deposition
in order to remove any periods of irrelevancy, purportedly to preserve the time and
attention of the jury.
While testimony by witnesses in open court is preferred, see Fed. R. Civil P.
43(a), there is no doubt that the rules permit the use of deposition testimony at trial
of a witness — even a party — in lieu of personal appearance, as long as the
conditions set forth in Rule 32(a)(4), or any of them, have been met.

See

Richmond v. Brooks, 227 F.2d 490, 492-93 (2d Cir. 1955). On the other hand, the
court has the discretion to exclude such deposition testimony even if permitted
1

The jury trial is scheduled to begin on January 7, 2019, and last for more than
two weeks.
2

There are a number of issues in this case, most of which are the subject of a
pending Motion for Summary Judgment by the defendants, which has been briefed and
argued, but not yet decided.
-3-

under the rules, under appropriate circumstances. See Skins & Leather Co. v. Twin
City Leather Co., 246 B.R. 743, 748 (N.D.N.Y. 2000).
While the defendants do not contest that the plaintiff is unavailable within
the meaning of Rule 32(a)(4) because he resides more than 100 miles from the
place of trial and is infirm, 3 I agree with them that videotaped testimony of the
plaintiff for trial would not be appropriate in this case. Even if the deposition were
taken close to the date of trial, it would still restrict the ability of defense counsel to
cross examine the plaintiff about matters that arise during the trial, including the
testimony of other witnesses. Moreover, the process of editing the videotape to
remove portions that the plaintiff’s attorneys do not want the jury to see is bound to
produce disputes requiring extensive time for the lawyers and the court to resolve.
I will, however, permit the plaintiff to testify by contemporaneous video
transmission, finding good cause and compelling circumstances for that process.
See Fed. R. Civ. P. 43(a). It is important that the jurors be able to observe him
uncensored and in real time, in order to make their necessary credibility
determinations.

Moreover, it would be unfair to remove the possibility of

impeaching cross examination about matters that might first present themselves at

3

There is no indication that the plaintiff’s place of residence or mental condition
will change between now and the scheduled trial date. Obviously, if that happens,
plaintiff’s counsel will be required to promptly advise the court and opposing counsel.
-4-

trial. Contemporaneous remote video testimony would balance the risk of harm to
the plaintiff from traveling to trial with the preference for live testimony.
Counsel for the plaintiff objects to live video testimony because they believe
it would be necessary to have an attorney present with the plaintiff during his
testimony, and thus by necessity that lawyer would be absent from the trial, at least
for the time required to return from Florida after the plaintiff’s testimony. While I
agree that this is not a perfect solution, I do note that no less than 11 lawyers from
a national law firm have entered an appearance for the plaintiff and thus the
plaintiff will not be lacking legal fire power at any stage of the case.4
Accordingly, it is ORDERED that Plaintiff Reginald Cornelius Latson’s
Motion to Use Deposition Testimony of Unavailable Witness at Trial, ECF No.
156, is DENIED, as set forth herein.
ENTER: May 18, 2018
/s/ James P. Jones
United States District Judge

4

Counsel contends that only three of these lawyers will be the “trial team,” but
agree that the other attorneys have been employed in various aspects of the case and are
thus familiar with the issues.
-5-