Bouygues Telecom v. Tekelec, Inc.

238 F.R.D. 413, 2006 U.S. Dist. LEXIS 90511, 2006 WL 3488973
CourtDistrict Court, E.D. North Carolina
DecidedOctober 16, 2006
DocketNo. 4:05-CV-78-FL
StatusPublished
Cited by4 cases

This text of 238 F.R.D. 413 (Bouygues Telecom v. Tekelec, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bouygues Telecom v. Tekelec, Inc., 238 F.R.D. 413, 2006 U.S. Dist. LEXIS 90511, 2006 WL 3488973 (E.D.N.C. 2006).

Opinion

DECISION AND ORDER

GATES, United States Magistrate Judge.

This case comes before the Court on the motion by plaintiff Bouygues Telecom, S.A. (“Bouygues”) [DE # 191-1] to block the deposition of Gwendoline Lardeux (“Lardeux”) noticed by defendant Tekelec, Inc. (“Teke-lec”). Bouygues bases its motion on the grounds that the deposition would exceed the twenty-deposition limit in the Court’s Case Management Order (“CMO”) [DE #76]. Tekelec has responded to the motion [DE # 193] and Bouygues has filed a reply memorandum [DE # 194]. The motion was referred to the undersigned Magistrate Judge by Chief Judge Louise W. Flanagan for decision and order, pursuant to 28 U.S.C. § 636(b)(1)(A). For the reasons set forth below, the motion is denied.

BACKGROUND

The CMO limited each party to a total of twenty depositions of fact witnesses during the discovery period. (CMO, § I.G). One witness originally identified by Tekelec in May 2006 as an individual it intended to depose was Lardeux, a French attorney who formerly was employed by Bouygues. (See DE # 193-2, E-mail dated 12 May 2006 at 8:24 p.m.). Because Lardeux is no longer employed by Bouygues, in June 2006 Tekelec sought a Letter of- Request for Judicial Assistance from French authorities pursuant to the Hague Convention to obtain her appearance at a deposition. (See DE # 127 (6 June 2006)). The parties proceeded with other depositions while Tekelec awaited word from the French tribunal. In August 2006, Teke-lec advised Bouygues that if there were problems getting approval from the French authority, Tekelec still intended to depose Lardeux through a de bene esse deposition at a later date. (See DE # 193-4, E-mail dated 9 Aug. 2006).1 Ultimately, on 1 September [414]*4142006, Tekelec opted to forgo Lardeux’s deposition as one of its allotted twenty and selected another deposition in its place. (See DE # 191-2, E-mails dated 1 Sept. 2006 at 1:36 p.m., 1:45 p.m., and 5:15 p.m.). At that time, Tekelec reminded Bouygues of its intention to depose Lardeux via a de bene esse deposition. (See DE # 191-2, E-mail dated 1 Sept. 2006 at 6:24 p.m.).2

On 27 September 2006, the French tribunal issued a Letter Recommandee [DE # 192] permitting Tekelec to proceed with Lardeux’s deposition on 26 October 2006. On 4 October 2006, Tekelec issued a notice of deposition de bene esse for Lardeux [DE # 191-3]. In response, Bouygues filed the instant motion on 6 October 2006.

DISCUSSION

Bouygues’s principal contention is that the Federal Rules of Civil Procedure have eliminated the distinction between discovery and de bene esse depositions, and that the twenty-deposition limit in the CMO must therefore be interpreted to apply to the proposed de bene esse deposition of Lardeux. The Court disagrees.

There is a basic difference between discovery and de bene esse depositions. The purpose of a discovery deposition is to discover information; the purpose of a de bene esse deposition is to preserve testimony for trial. As the authorities cited by Tekelec demonstrate, courts continue to recognize this distinction and in certain, but not all, circumstances the need to treat de bene esse depositions differently because of their distinct nature. This Court recognizes the distinction in its local rules. Local Rule 32.1 (E.D.N.C.) expressly provides that “[depositions de bene esse may be taken outside of the period of discovery.” This Court has also based rulings on the distinct nature of de bene esse depositions. E.g., Order, Phar-manetics, Inc. v. Aventis Pharmaceuticals, Inc., No. 5:03-CV-817-FL (19 May 2005) (de bene esse depositions allowed to proceed where noticing party had relied on Local Rule 32.1 in cancelling earlier scheduled discovery depositions and had reserved its right to take de bene esse depositions at the time of cancellation).3

The principal case upon which Bouygues relies, Tatman v. Collins, 938 F.2d 509 (4th Cir.1991), does not contradict these principles. Tatman actually recognizes the distinct purpose of de bene esse depositions to preserve testimony for use at trial. 938 F.2d at 510. The Tatman court goes on to state that “[t]he 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).” 938 F.2d at 510 (emphasis added). As the emphasized language indicates, the concern of the court in Tatman was not, as here, whether a party could take a de bene esse deposition under a case management order, but whether a deposition taken during the discovery period could be used at trial. Specifically, the Fourth Circuit reversed the district court and held that a deposition could be used at trial even though it was not designated as a de bene esse deposition when taken. 938 F.2d at 510-11. The holding in Tatman is therefore inapposite to the pending motion. None of the other decisions cited by Bouygues involve circumstances comparable to those here, including the presence of a local rule like Local Rule 32.1 (E.D.N.C.).

A central purpose of the limit on the number of depositions in the CMO is to facilitate cost-effective discovery. Indeed, the limit appears in the section of the CMO dealing with discovery. To the extent that the purpose of a deposition is not discovery but to preserve trial testimony, application of the [415]*415limit to the deposition does not advance that purpose. A deposition does not necessarily fall outside the limit on the number of depositions simply because a party characterizes the deposition as one taken de bene esse. However, under appropriate circumstances, the Court can find that a deposition so characterized is outside the limit.

According to Bouygues, even if that is true, the proposed Lardeux deposition is not really a de bene esse deposition and, irrespective of its nature, allowing it to go forward would be inequitable and prejudicial to Bouy-gues. Again, the Court finds these arguments unconvincing.

Tekelec’s characterization of the deposition as one de bene esse is not a sham. Tekelee has for some time made clear its intention to take Lardeux’s deposition to preserve her testimony if her discovery deposition could not be effected. Tekelec’s cautious approach is understandable given the demonstrated difficulty and uncertainty associated with arranging an overseas deposition such as Lar-deux’s.

In addition, it is indisputable that Lar-deux’s trial testimony can be obtained only by means of a deposition. Lardeux is in a foreign country and has demonstrated her unwillingness to submit voluntarily to examination.

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238 F.R.D. 413, 2006 U.S. Dist. LEXIS 90511, 2006 WL 3488973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouygues-telecom-v-tekelec-inc-nced-2006.