United States District Court, M.D. Pennsylvania
D. M3riani United States District Judge
Introduction and Procedural History This is a § 1983
employment action involving First Amendment retaliation
claims against numerous Defendants, as well as a pendant
state law claim for assault and battery against Defendant
Botjer for allegedly slapping Plaintiff in the face during a
workplace conversation. Doc. 11. Presently before the Court
is a motion to take the video deposition of a witness before
trial. Doc. 66. Plaintiff avers that Robert Pickney, who has
been deposed during discovery, will be unavailable during the
scheduled trial time due to prearranged travel plans abroad.
Plaintiff therefore requests an opportunity to take a video
deposition of Mr. Pickney before he leaves for his trip,
presumably for the purpose of introducing the video recording
as trial testimony. Defendants oppose the motion, arguing
that Plaintiff has already had an opportunity to depose Mr.
Pickney, and that Plaintiff has not made a substantive
showing as to Mr. Pickney's unavailability for trial.
Doc. 70. For reasons set forth below, Plaintiff's motion
will be granted.
in this case is scheduled to begin on May 8, 2018. On April
19, 2018, Plaintiff filed the motion to take the video
deposition of Robert Pickney, stating that while he was
subpoenaed for this trial, he will be unavailable due to a
missionary trip. Doc. 66. Defendants opposed the motion on
several grounds. Doc. 70. First, Defendants argue that [i]f
Plaintiff does seek to use Mr. Pickney's deposition at
trial, he must file a motion for the use of the deposition,
" which Plaintiff has not yet done. Doc. 70 at 3.
Fed.R.Civ.P. 32, which governs the use of depositions in
court proceedings, outlines the various bases for witness
A party may use for any purpose the deposition of a witness,
whether or not a party, if the court finds:
(A)that the witness is dead;
(B)that the witness is more than 100 miles from the place of
hearing or trial or is outside the United States, unless it
appears that the witness's absence was procured by the
party offering the deposition;
(C)that the witness cannot attend or testify because of age,
illness, infirmity, or imprisonment;
(D)that the party offering the deposition could not procure
the witness's attendance by subpoena; or
(E)on motion and notice, that exceptional 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.
Fed. R. Civ. P. 32(a)(4) (emphasis added). Defendants fixate
on subsection (E) of the Rule and argue that Plaintiff
"[i]f Plaintiff does seek to use Mr. Pickney's
deposition at trial, he must, through a motion, convince the
court that Mr. Pickney is in fact unavailable for trial and
that 'exceptional circumstances make it desirable...to
permit the deposition to be used.'" Doc. 70 at 5
(quoting Fed.R.Civ.P. 32(a)(4)(E)). This is a clear
misinterpretation of the Rule. The conjunction "or"
joins the five subparts of the provision, the satisfaction of
any one of which may be sufficient to permit use of
depositions during trial. Thus, it is not necessary, as
Defendants argue, for Plaintiff to file another motion
demonstrating that "exceptional circumstances"
warrant the use of Mr. Pickney's video deposition during
trial. In this case, it is evident that that Plaintiff is
moving under subsection (B) of the relevant provision, which
provides that the Court may find a witness to be unavailable
if he is more than 100 miles from the place of trial.
Defendants argue that Plaintiff "must also provide
evidence that Robert Pickney is in fact unavailable for
trial." Doc. 70 at 3. Defendants' point is well
taken. In order for the Court to make the requisite findings
under Fed.R.Civ.P. 32, Plaintiff should furnish some evidence
as to Mr. Pickney's unavailability. However, Plaintiff
has since filed-albeit belatedly and only upon an Order from
the Court-an affidavit by Mr. Pickney stating that during the
time of trial, he will be on a missionary trip in Honduras.
Doc. 78 at 1. The affidavit also attaches Mr. Pickney's
flight confirmation and other travel information.
Id. at 3-7. Based on Plaintiffs filings and the
Pickney affidavit, it appears that Mr. Pickney will be
"more than 100 miles from the place of hearing or trial
or is outside the United States" during trial time.
Fed.R.Civ.P. 32(a)(4)(B). Furthermore, it does not appear to
the Court, nor has any party suggested, that his
"absence was procured by the party offering the
deposition." Id. Thus, the Court finds that use
of Mr. Pickney's deposition at trial may be permitted
under Fed.R.Civ.P. 32.
Defendants argue that because Mr. Pickney has been deposed
before, Plaintiff may read the deposition transcript into the
record during the trial, and that Plaintiff should not be
given a second bite at the apple by having another
opportunity to depose Mr. Pickney. Doc. 70 at 4-5. The Court
is sympathetic to Defendants' argument, especially given
the fact that all parties have been given advanced notice of
the trial schedule, and thus had more than enough time to
secure the attendance of important witnesses or make
necessary alternative arrangements. This eleventh hour motion
to take Mr. Pickney's video deposition demonstrates, at
the very least, poor planning on the part of the Plaintiff,
if not evidence of an underhanded litigation tactic.
the Court will not allow Plaintiff counsel's conduct to
taint or penalize the Plaintiff's case in chief. Courts
have often found a distinction between the purpose and scope
of discovery depositions and that of trial depositions; to
require the parties to rest on Mr. Pickney's discovery
deposition as trial testimony may result in disadvantages to
both parties. See, e.g., Teva Pharmaceuticals, USA, Inc.
v. Abbott Labs., 2008 WL 4809116, at *1 (D. Del. Nov. 5,
2008) ("Discovery depositions are different from trial
depositions; i .e., the scope of relevance is very broad
during discovery and, therefore, discovery depositions might
be prejudicial if allowed at trial."). In the case where
a witness will be unavailable for trial, courts have
routinely allowed a "preservation" deposition to
take place, even if the witness has been deposed before
during discovery. See, e.g., Coface Collections N. Am.,
Inc. v. Newton, 2012 WL 6738391, at *1 (D. Del. Dec. 28,
2012) ("While the Federal Rules of Civil Procedure make
no distinction between depositions taken for discovery and
depositions taken for trial purposes, see Fed. R. Civ. Proc.
32, many courts have recognized such a distinction and held
that the latter (i.e., de bene esse depositions,
'preservation depositions, ' or 'trial
depositions') may be taken after the close of
discovery.... Factors to be considered in granting a de
bene esse deposition after the close of discovery
[include]: the unavailability of the witness to appear at