Jahr v. IU International Corp.

109 F.R.D. 429, 4 Fed. R. Serv. 3d 943, 1986 U.S. Dist. LEXIS 28669
CourtDistrict Court, M.D. North Carolina
DecidedMarch 3, 1986
DocketCiv. A. No. C-85-972-G
StatusPublished
Cited by32 cases

This text of 109 F.R.D. 429 (Jahr v. IU International Corp.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jahr v. IU International Corp., 109 F.R.D. 429, 4 Fed. R. Serv. 3d 943, 1986 U.S. Dist. LEXIS 28669 (M.D.N.C. 1986).

Opinion

MEMORANDUM ORDER

RUSSELL A. ELIASON, United States Magistrate.

Plaintiff moves pursuant to Rule 30(b)(7), Fed.R.Civ.P., to take the telephonic deposition of William Scott, a resident of the State of California. She states that this witness has knowledge of facts central to the issues in this action, and that he was her supervisor at the time both of them were employed by defendants. Plaintiff alleges that due to her lack of financial means, she needs to depose the witness by telephone.

Defendants oppose the motion. They assert plaintiff must show extraordinary circumstances in order to be permitted to take a telephonic deposition. First, they argue that it is imperative to cross-examine the witness under conditions which proximate trial conditions since plaintiff intends to use Scott’s deposition as substantive evidence at the trial. According to defendants, this means they must be permitted an opportunity to observe the witness. Second, defendants state that plaintiff fails to show good cause for a telephonic deposition on grounds of financial necessity since plaintiff has not submitted a financial affidavit. Defendants rely on three cases as supporting their position, citing Clem v. Allied Van Lines International Corp., 102 F.R.D. 938 (S.D.N.Y.1984); Southern Seas Shipping Co., Ltd. v. Blue Anchor, Inc., et al., No. 83-3851 (E.D.Pa. April 5, 1985); and United States v. Ferrera, 746 F.2d 908 (1st Cir.1984). Defendants state that the one case permitting a telephonic deposition pursuant to Rule 30(b)(7), did so without any discussion of the relevant issues. See Coyne v. Houss, 584 F.Supp. 1105 (E.D.N.Y.1984). The Court disagrees with defendants’ interpretation of Rule 30(b)(7) and finds the cited cases to be inapposite.

In 1980, Rule 30(b) was amended to permit the taking of telephonic depositions. The Rule now provides:

The parties may stipulate in writing or the Court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions propounded to him.

Rule 30(b)(7), Fed.R.Civ.P.

Nothing in the language of Rule 30(b)(7) requires that a telephonic deposition may only be taken upon a showing of necessity, financial inability, or other hardship. Nor do the Advisory Committee Notes give any reason to imply such restrictions were intended as conditions for issuing an order to conduct telephonic depositions.1 However, by looking to a concommitant 1980 amend[431]*431ment to Rule 30, one discerns a purpose to encourage the courts to be more amenable to employing non-traditional methods for conducting depositions, such as telephonic depositions, in order to reduce the cost of federal litigation. In the same year that subsection (b)(7) was added, Rule 30(b)(4) was amended to further encourage the use of and experimentation in taking depositions which are recorded by other than stenographic means. Previously, a party had to apply for a court order. With the 1980 amendment, the parties could stipulate to a non-stenographic deposition. The Advisory Committee Notes state the purpose for this amendment was to encourage use of electronic depositions.

The Court finds Rule 30(b)(7) should be construed in pari materia with subsection (b)(4). Both have a joint purpose of reducing the cost of federal litigation by providing alternatives to traditional stenographic depositions. The courts have not required a showing of extraordinary circumstances before granting Rule 30(b)(4) motions. See 8 Wright, Miller & Elliot, Federal Practice and Procedure § 2115 at 176-181 (Supp.1985).2 Likewise, no reason appears for imposing harsh or unusual requirements before permitting telephonic depositions.

Because of the history and similar purpose of subsections (b)(4) and (b)(7), the Court concludes that leave to take telephonic depositions should be liberally granted in appropriate cases. This construction accords with the purpose for permitting telephonic depositions, which necessarily must have been to encourage courts to experiment with non-traditional means of taking depositions. In ruling on motions for telephonic depositions, a court may appropriately exercise its discretion with caution in order to protect the integrity of the deposition process and assure that no one is truly prejudiced by employment of this new and relatively untested method. However, until experience demonstrates otherwise, no reason now appears for establishing a rule requiring the moving party to show necessity. Thus, upon giving a legitimate reason for taking a deposition telephonically, the movant need not further show an extraordinary need for the deposition. Rather, the burden is on the opposing party to establish why the deposition should not be conducted telephonically.

Defendants’ citation of authority is not to the contrary. In Clem v. Allied Van Lines International Corp., supra, the court denied plaintiffs’ request to take his telephonic deposition outside the district based on its long standing policy of requiring non-resident plaintiffs to be deposed within the district. It was in this context that the court stated that plaintiff would be required to show extreme hardship in order to be permitted to have his deposition taken telephonically outside the district. The decision, thus, involves the court’s policy with respect to having plaintiffs deposed within the forum and not a general rule covering Rule 30(b)(7) depositions.

In Southern Seas Shipping Co., Ltd. v. Blue Anchor, Inc., supra, the court denied a request to depose two non-party witnesses who would authenticate documents in order to establish a claim. There, the court noted that the witnesses were not parties, but were Chilean nationals and that a telephonic deposition outside of the United States was not appropriate. The Court held that the depositions should be taken by traditional means in view of Rule 28(b), Fed.R.Civ.P., which provides for the taking of depositions in foreign countries and in view of 28 U.S.C. § 1781 (providing for letter rogatories). In Clem, the deponent-[432]*432plaintiff also wanted to be deposed outside the United States. Thus, in both Clem and Southern Seas, the decision denying the telephonic deposition had ample justification on the grounds that the depositions were simply not authorized since they were to take place outside of the United States.3 However, that issue is not before the Court, as the witness here will be deposed within the United States.

Defendants urge that the Court deny the telephonic deposition on the grounds that they will be denied face-to-face contact with the witness. They cite United States v. Ferrera, supra, in support of this rationale. However, that case involved a criminal prosecution. The Court stated it was reluctant to permit any kind of deposition in a criminal case because of the policy favoring live testimony and, therefore, was even less sympathetic with a telephonic deposition which would further isolate the witness from the trial process. The court stated that it would require a strong showing of necessity before authorizing such a procedure.

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109 F.R.D. 429, 4 Fed. R. Serv. 3d 943, 1986 U.S. Dist. LEXIS 28669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jahr-v-iu-international-corp-ncmd-1986.