Roundtree v. Chase Bank USA, N.A.

Filing 180

ORDER denying motion for order and leave to have FRCP 30(b)(6) witness appear at trial via video conference, or alternatively, for findings pursuant to FRCP 32(a)(4)(C); by Judge Marsha J. Pechman.(RM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

BRIAN C. ROUNDTREE,

11

Plaintiff,
v.

12
13

CHASE BANK USA, N.A.,
Defendant.

14

CASE NO. 13-239 MJP
ORDER ON MOTION FOR ORDER
AND LEAVE TO HAVE FRCP
30(b)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE,
OR ALTERNATIVELY, FOR
FINDINGS PURSUANT TO FRCP
32(a)(4)(C)

15
16

THIS MATTER comes before the Court on Plaintiff’s motion for order and leave to have

17 FRCP 30(b)(6) witness appear at trial via video conference, or alternatively, for findings
18 pursuant to FRCP 32(a)(4)(C). The Court has considered the motion (Dkt. No. 153), Defendant’s
19 response (Dkt. No. 163), Plaintiff’s reply (Dkt. No. 169), all related documents, and rules as
20 follows:
21

IT IS ORDERED that Plaintiff’s Motion for order and leave to have Federal Rule of Civil

22 Procedure (“FRCP”) (30)(b)(6) witness appear at trial via video conference is DENIED.
23
24 ORDER ON MOTION FOR ORDER AND LEAVE

TO HAVE FRCP 30(B)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE, OR
ALTERNATIVELY, FOR FINDINGS PURSUANT
TO FRCP 32(A)(4)(C)- 1

1

IT IS FURTHER ORDERED that the alternative motion for findings pursuant to FRCP

2 32(a)(4)(c) is DENIED.
3
4
5
6
7

Background
This case involves contested charges to Plaintiff’s Chase Bank credit card, which was
used for travel and entertainment. (Dkt. No. 36 at 15.) Following Defendant’s partially
successful motion for summary judgment, Plaintiff’s remaining claims concern the Fair Credit
Banking Act (“FCBA”). (Dkt. No. 105.)

8
In October 2013, Plaintiff notified this Court of the scheduled deposition of Defendant’s
9
deponent, appointed under FRCP 30(b)(6) (“corporate deponent”). (Dkt. No. 154, Exhibit A.)
10
Two such depositions occurred. (Dkt. 163 at 1.) In February 2014, Defendant informed Plaintiff
11
of the corporate deponent’s illness and related unavailability for trial. (Dkt. 153 at 2.) The
12
corporate deponent is now well enough to work but asked to be released from further
13
involvement with this matter. (Dkt. No. 163 at 1.)
14
Analysis
15
Plaintiff makes two requests. First, he asks this Court to apply a combination of FRCP
16
30(b)(6), 43, and 45 to compel Defendant’s unwilling corporate deponent to testify at trial via
17
live video link. Second, Plaintiff cites FRCP 32(a)(4)(C) and asks this Court to require
18
Defendant to produce evidence substantiating the corporate deponent’s unavailability. As
19
explained below, Plaintiff’s motions are not supported by the plain language of these rules.
20
21
22

A. FRCP 30(b)(6) is inapplicable to the issue of witness testimony at trial
Plaintiff asserts that the duties of Defendant’s corporate deponent extend beyond

23 discovery. (Dkt. 153 at 3.) This is incorrect. FRCP 30(b)(6) is a discovery rule applicable when a
24 ORDER ON MOTION FOR ORDER AND LEAVE

TO HAVE FRCP 30(B)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE, OR
ALTERNATIVELY, FOR FINDINGS PURSUANT
TO FRCP 32(A)(4)(C)- 2

1 party wishes to depose an organization. Under the rule, the deposing party describes the subject
2 matter of the proposed deposition and the organization produces the person(s) competent to
3 testify on the described subject; i.e., the corporate deponent. Here, Plaintiff conducted two
4 depositions of Defendant’s corporate deponent. At that point, Defendant’s obligations under
5 FRCP 30(b)(6) were fulfilled; the rule contains no language compelling the corporate deponent’s
6 testimony at trial.
7
8

B. FRCP 45 does not permit this Court to compel an Arizona-based corporate
deponent to testify at trial in Washington State

9
Plaintiff asks this Court to use its subpoena power under FRCP 45 to compel the
10
Arizona-based corporate deponent to testify in Seattle, Washington. The Court does not read
11
FRCP 45 to permit this. While it allows subpoena service anywhere in the country, a subpoena
12
notice can only direct compliance as defined by FRCP 45(c), which states:
13
14
15
16
17
18
19
20
21
22

(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to
attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or
regularly transacts business in person, if the person
(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
If the subpoena falls outside of the scope of FRCP 45(c), FRCP 45(d)(3)(A)(ii) requires
the Court to quash the subpoena following timely motion. Here, the corporate deponent resides
and is employed in Arizona. (Dkt. 163 at 4.) Regardless of his status as nonparty witness, party,

23
24 ORDER ON MOTION FOR ORDER AND LEAVE

TO HAVE FRCP 30(B)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE, OR
ALTERNATIVELY, FOR FINDINGS PURSUANT
TO FRCP 32(A)(4)(C)- 3

1 or party officer, he is more than 100 miles from Seattle and in another state. Therefore, the
2 Federal Rules of Civil Procedure do not authorize this Court to compel his attendance.
3

Plaintiff attempts to avoid the geographic limits of FRCP 45(c) by arguing that trial

4 testimony via live video link moves a trial to the physical location of the testifying person.
5 Plaintiff contends that, during those minutes of testimony via live video link from Arizona, the
6 trial in a Seattle courthouse would be transported to Arizona. Plaintiff provides no legal authority
7 or compelling reason for this interpretation of Rule 45(c) and the Court declines to adopt it.
8

C. FRCP 43(a) requires a witness willing or compelled to testify at trial

9
FRCP 43(a) establishes the general rule that witnesses should give live testimony in open
10
court. Under exceptional circumstances, it permits a Court to allow contemporaneous
11
transmission of witness testimony from a different location; e.g., through video conference.
12
Application of this exception, however, presupposes a witness willing or compelled to testify at
13
trial. Here, the corporate deponent is not willing to testify at trial. Nor, as explained above, can
14
Plaintiff compel the corporate deponent to testify at trial in Seattle. Therefore, there is no reason
15
for this Court to consider whether this situation merits the exceptional use of video transmission
16
of testimony.
17
18
19

D. Motion for “findings” under FRCP 32(a)(4)(C) is inappropriate and unnecessary
The Court finds that the corporate deponent is unavailable because he is unwilling to

20 voluntarily appear and is outside the subpoena power of this Court. Defendant does not contest
21 Plaintiff’s freedom to introduce the deposition testimony into evidence (to the extent it is within
22 the scope of the deposition notice). (Dkt. 163 at 7.) Thus, there is no reason to require “findings”
23 in support of his unavailability.
24 ORDER ON MOTION FOR ORDER AND LEAVE

TO HAVE FRCP 30(B)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE, OR
ALTERNATIVELY, FOR FINDINGS PURSUANT
TO FRCP 32(A)(4)(C)- 4

1
2

Conclusion
The Court DENIES the motion to compel FRCP 30(b)(6) deponent to appear at trial via

3 video conference because the Federal Rules of Civil Procedure do not require the deponent to
4 appear. The Court DENIES the alternative motion for findings pursuant to FRCP 32(a)(4)(C)
5 because there is no need for such findings.
6
7

The clerk is ordered to provide copies of this order to all counsel.

8

Dated this 3rd day of June, 2014.

9

11

A

12

Marsha J. Pechman
United States District Judge

10

13
14
15
16
17
18
19
20
21
22
23
24 ORDER ON MOTION FOR ORDER AND LEAVE

TO HAVE FRCP 30(B)(6) WITNESS APPEAR AT
TRIAL VIA VIDEO CONFERENCE, OR
ALTERNATIVELY, FOR FINDINGS PURSUANT
TO FRCP 32(A)(4)(C)- 5