Harris v. JFC International Inc

• Court: District Court, W.D. Washington
• Decided: May 4, 2023
• Docket: 2:21-cv-01536
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 BRANDON HARRIS, CASE NO. 21-CV-01536-LK 11 Plaintiff, ORDER DENYING STIPULATED 12 v. MOTION 13 JFC INTERNATIONAL INC., et al., 14 Defendants. 15

16 This matter comes before the Court on the parties’ Stipulated Motion to Allow Taking of 17 Video Recorded Trial Testimony Past the Discovery Completion Deadline. Dkt. No. 32. As the 18 title of their motion suggests, the parties wish to conduct video recorded perpetuation depositions 19 after the May 19, 2023 discovery cutoff. Id. at 1. They contend that presentation of this recorded 20 testimony at trial will save time and cut costs. Id. The parties further suggest that such depositions 21 may be unnecessary if mediation proves successful. Id. However, because mediation is just now 22 being scheduled, they request permission “to take and preserve video trial testimony until at least 23 September 6, 2023.” Id. at 2. 24 1 The parties’ request implicates Federal Rules of Civil Procedure 16 and 32. And it fails 2 under both. “Perpetuation depositions—also known as de bene esse depositions—preserve 3 testimony for use at trial where the witness may be unavailable to attend trial.” Holen v. Jozic, No. 4 C17-1147-JLR, 2018 WL 4518699, at *1 (W.D. Wash. Sept. 20, 2018). The parties must show

5 good cause under Rule 16(b)(4) to extend the May 19, 2023 discovery deadline if they wish to 6 conduct perpetuation depositions beyond that date. They have not done so. The good cause 7 standard is met when the current deadlines “cannot reasonably be met despite the diligence of the 8 party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 9 1992) (cleaned up). Here, the parties do not contend that the witnesses at issue cannot be deposed 10 before May 19th despite their diligence. They instead argue that a schedule modification will allow 11 them to avoid the costs associated with video depositions should mediation prove successful. That 12 is not the test. The Court therefore cannot find the requisite good cause to modify its pretrial 13 schedule. 14 Nor would the perpetuation depositions be permitted at trial based on the scant information

15 the parties provide in their motion. A party may use a deposition at trial “for any purpose” if the 16 Court finds that the witness is dead; the witness is “more than 100 miles from the place of hearing 17 or trial or is outside the United States”; the witness is unable to testify at trial “because of age, 18 illness, infirmity, or imprisonment”; the offering party could not procure the witness’s attendance 19 by subpoena; or “exceptional circumstances make it desirable—in the interest of justice and with 20 due regard to the importance of live testimony in open court—to permit the deposition to be used.” 21 Fed. R. Civ. P. 32(a)(4). The parties make no effort to identify the witnesses who will testify 22 through perpetuation depositions or explain why the use of that testimony at trial will meet one of 23 Rule 32(a)(4)’s predicate circumstances. To the extent they suggest that their desire to save time

24 and money qualifies as “exceptional circumstances,” the Court does not agree. The “exceptional 1 circumstances” requirement is a “stringent standard” that applies when live testimony from the 2 deponent is impossible or highly impracticable. Waller v. Mann, No. C17-1626-RSL, 2021 WL 3 2531008, at *2 (W.D. Wash. June 21, 2021) (collecting cases and explaining why retired expert 4 was not “unavailable” to testify); compare Holen, 2018 WL 4518699, at *1–2 (allowing

5 perpetuation depositions of five medical experts who were located outside of Seattle given the 6 “significant expense” associated with their hourly rate and travel). Moreover, to the extent any 7 witnesses will have difficulty appearing in person at trial, Federal Rule of Civil Procedure 43(a) 8 permits testimony over a platform such as Zoom “[f]or good cause in compelling circumstances 9 and with appropriate safeguards.” 10 The parties’ stipulated motion is DENIED without prejudice to renew should they wish to 11 supply the requisite good cause for a schedule modification and explain why the perpetuation 12 depositions will satisfy Rule 32(a)(4). 13 Dated this 4th day of May, 2023. 14 A

15 Lauren King United States District Judge 16 17 18 19 20 21 22 23 24