Tarabochia v. Thurston County et al

Filing 64

ORDER granting 61 Stipulated Motion to take the Perpetuation Video Deposition of Dr. Russell Vandenbelt for use at trial; signed by Judge Ronald B. Leighton.(DN)

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Hon. Robert B. Leighton

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA

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SAMUEL TARABOCHIA, an individual,

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Plaintiff,
vs.
THURSTON COUNTY, a municipality;
et al.,
Defendants.

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NO. 3:18-cv-05056 RBL
STIPULATED MOTION AND
ORDER TO TAKE THE
PERPETUATION VIDEO
DEPOSITION OF DR. RUSSELL
VANDENBELT FOR USE AT
TRIAL

I. MOTION
Comes now defendants and move the court for leave to take the video perpetuation
deposition of Dr. Russell Vandenbelt for purposes of the trial in this matter. This motion is
stipulated to by the plaintiff. This motion is based on Fed. R. Civ. P. 32(a)(4) and Fed. R. Civ.
P. 16(b)(4), and the declaration of John E. Justice.
II. FACTS RELEVANT TO THE MOTION

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Dr. Vandenbelt was disclosed by defendants as a testifying expert in accordance with the

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Court’s case schedule order. Justice Dec. He was deposed by plaintiff’s counsel. Id. On March

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12, 2019, defense counsel contacted Dr. Vandenbelt to identify any conflict dates during the

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STIPULATED MOTION AND ORDER TO TAKE THE
PERPETUATION VIDEO DEPOSITION OF DR.
RUSSELL VANDENBELT FOR USE AT TRIAL – 1
Cause No.: 3:18-cv-05056 RBL

LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R.W. JOHNSON RD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
[phone] FAX: [phone]

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trial of this matter. Id. Dr. Vandenbelt indicated that he did not have the trial date on his

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calendar and had already purchased plane tickets to be out of the State during the two weeks of

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trial. Id. Defense counsel inadvertently had failed to communicate the trial date to Dr.
Vandenbelt. Id. Defense counsel immediately notified plaintiff’s counsel of the issue and
sought agreement to a video perpetuation deposition of Dr. Vandenbelt for use at trial. Id.
Plaintiff’s counsel graciously agreed to stipulate to this motion. Id.
III. LAW AND ARGUMENT

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Federal Rule of Civil Procedure 32(a)(4) provides that the deposition of a witness may

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be used “for any purpose” at trial if he or she “is more than 100 miles from the place of hearing

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or trial or is outside the United States,” or, “on motion and notice, that such exceptional

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circumstances make it desirable, in the interest of justice and with due regard to the
importance of live testimony in open court, to permit the deposition to be used.” Dr.
Vandenbelt will be out of State for the two weeks of trial in this matter and thus he meets the
test of Rule 32(a)(4).
While the deadline for taking despostions has passed, the Court can extend the deadline

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for good cause. Fed. R. Civ. P. 16(b)(4). The scheduling conflict in this case was a result of

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inadvertence and was brought to plaintiff’s counsel’s attention as soon as it was known and

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Plaintiff’s counsel has stipulated to this deposition occurring. Defense counsel has been
diligent in addressing this scheduling mistake and good cause exists to modify the case
schedule for the taking of this deposition. Johnson v. Mammoth Recreations, Inc., 975 F.2d

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STIPULATED MOTION AND ORDER TO TAKE THE
PERPETUATION VIDEO DEPOSITION OF DR.
RUSSELL VANDENBELT FOR USE AT TRIAL – 2
Cause No.: 3:18-cv-05056 RBL

LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R.W. JOHNSON RD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
[phone] FAX: [phone]

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604, 609 (9th Cir.1992) (“Rule 16(b)' s “good cause” standard primarily considers the diligence

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of the party seeking the amendment.”)

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DATED this 13th day of March, 2019.

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LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.

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/s/ John E. Justice
___________________________
John E. Justice, WSBA № 23042
Attorney for Thurston County Defendants
Email: [e-mail]

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STIPULATED TO this 13th day of March, 2019.

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MACDONALD HOAGE & BAYLESS

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/s/ David Whedbee
________________________
David Whedbee, WSBA № 35977
Attorney for Plaintiff
Email: [e-mail]

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ORDER

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Based on the foregoing stipulated motion and for good cause shown, the Court hereby

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Orders that the Video Perpetuation Deposition of Dr. Russell Vandenbelt may be taken for use

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at trial in this matter.

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DATED this 14th day of March, 2019.

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A

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Ronald B. Leighton
United States District Judge

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STIPULATED MOTION AND ORDER TO TAKE THE
PERPETUATION VIDEO DEPOSITION OF DR.
RUSSELL VANDENBELT FOR USE AT TRIAL – 3
Cause No.: 3:18-cv-05056 RBL

LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R.W. JOHNSON RD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
[phone] FAX: [phone]

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PRESENTED BY:
LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
/s/ John E. Justice
________________________
John E. Justice, WSBA № 23042
Attorney for Thurston County Defendants
APPROVED AS TO FORM:
MACDONALD HOAGE & BAYLESS
/s/ David Whedbee
_______________________
David Whedbee, WSBA № 35977
Attorney for Plaintiff

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STIPULATED MOTION AND ORDER TO TAKE THE
PERPETUATION VIDEO DEPOSITION OF DR.
RUSSELL VANDENBELT FOR USE AT TRIAL – 4
Cause No.: 3:18-cv-05056 RBL

LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R.W. JOHNSON RD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
[phone] FAX: [phone]