Pioneer Drive, LLC v. Nissan Diesel America, Inc.

262 F.R.D. 552, 2009 U.S. Dist. LEXIS 117032, 2009 WL 4362988
CourtDistrict Court, D. Montana
DecidedDecember 3, 2009
DocketNo. CV 08-115-M-DWM
StatusPublished
Cited by10 cases

This text of 262 F.R.D. 552 (Pioneer Drive, LLC v. Nissan Diesel America, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552, 2009 U.S. Dist. LEXIS 117032, 2009 WL 4362988 (D. Mont. 2009).

Opinion

ORDER

Litigation at times can be trying. However, it is at the intersection of frustration and demand that the wise lawyer will check two axioms: (1) collegiality can displace cost,1 [554]*554and (2) know the rules. The failure to heed these two universal principles gives rise to the current controversy.

I. Introduction

Before the Court are Plaintiff Pioneer Drive’s two motions for discovery sanctions. In the first motion, Plaintiff claims Defendant Nissan Diesel America obstructed its authorized discovery by forcing Plaintiff to hire a professional videographer to record depositions. For this indiscretion, Plaintiff seeks the costs of the videographer plus attorney fees. The second sanction motion claims Defendant Nissan Diesel America failed to produce an adequately prepared witness at a Rule 30(b)(6) noticed deposition. For this failure, Plaintiff seeks sanctions up to and including the preclusion of Defendant presenting evidence related to the matters in the deposition notice. For the reasons set forth below I find Plaintiffs position should generally prevail. Each motion is discussed in turn.

II. Obstruction of Depositions

Plaintiff seeks $9,438 in videographer fees plus costs and attorney fees under Federal Rule of Civil Procedure 30(d). Plaintiff argues Defendant impeded and frustrated its fair examination of deponents by refusing to allow Plaintiffs counsel to videotape depositions. Plaintiff claims the obstinance took place despite the presence of a certified court reporter. Defendant argues a deposition can only be recorded by an independent professional, and that the depositions were not impeded or delayed by Defendant’s good faith objection.

A. Factual Background

On July 6 and July 30, 2009, Plaintiff served notices of depositions pursuant to Fed.R.Civ.P. 30(b)(6) upon Defendant calling for a week of depositions starting August 24, 2009. The depositions were to take place at the office of Defendant’s counsel in Houston, Texas. The notices stated depositions “will be recorded by video and by a court reporter stenographically.” The notices did not state that the videotaping would be conducted by Plaintiffs counsel. Defendant did not object to these notices.

Plaintiffs counsel traveled from Oregon to Texas for the depositions. Before the start of the first deposition, Plaintiffs counsel set up a small video camera with the intention of visually recording the depositions. Defendant’s counsel assumed a professional videog-rapher would visually record all depositions and was unaware that the deposition would be recorded by opposing counsel. The Defendant’s lawyer objected, and refused to permit the deposition to be videotaped unless an independent professional did so at Plaintiffs expense. In other words, he took the position of “my way or the highway.” Defendant’s counsel said he had no problem proceeding with only a stenographic recording of the examinations. In response, Plaintiff suggested that the depositions be videotaped by counsel as planned, and the Court could later decide if the recordings should be permitted at trial. Defendant’s counsel stood on his objection, and refused “any option whereby [Plaintiff tried] to obtain a video of this deposition or any other depositions noticed for [the] week ... that is not taken via a videog-rapher who is authorized and properly trained to take such videos for use in a trial before the Court.” (Iwamura Dep. 8:9-14, Aug. 24, 2009.) Plaintiff then hired a videog-rapher who arrived within about an hour and stayed for the balance of the week’s depositions to the tune of about $15,000.

[555]*555B. Discussion

Plaintiffs motion brings up three issues. First, must a deposition be videotaped by an independent professional when it will also be recorded by a stenographer? Second, do the Federal Rules of Civil Procedure allow such an objection to forestall a deposition from proceeding? Finally, did the Defendant impede, delay or frustrate the deposition warranting an award of sanctions?

1. Videotaping Depositions

The problem here arises from the ambiguity of the notice. The notice satisfies the literal requirement of the Rule,2 but leaves room for interpretation according to local practice, i.e., Texas custom relies on certified videographers while Oregon custom relies on paralegals or associates to handle the camera. The better practice is to clearly identify the means of videotaping in the written notice of deposition.

In this case Defendant’s counsel objected to Plaintiffs counsel videotaping the depositions. Defendant argues the Ninth Circuit has not ruled on who can videotape a deposition, and in this silence common sense dictates that only independent professionals may do so.

Nothing in the language of the Rules supports this 'proposition, and the amendments to the rules and associated comments bolster Plaintiffs position. The Federal Rules of Civil Procedure allow, at the very least, counsel to videotape a deposition in concert with a stenographer recording it. Over the past thirty years courts have increasingly recognized videotaping as an inexpensive and preferable alternative to stenographically recording depositions. See Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 259 n. 6 (5th Cir.1985) (listing cases that discuss the preferability of videotaped depositions). This trend was recognized and codified in the 1993 amendments to the Federal Rules of Civil Procedure, which provided that “[u]n-less the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means.” Fed.R.Civ.P. 30(b)(3)(a). The result of this change is that “parties [are] authorized to record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel.” Advisory Committee’s Note on Fed.R.Civ.P. 30.

In authorizing a deposing party to record a deposition by nonstenographic means, the Rules were also amended to address concerns over accuracy. The Rules now provide that a deposition cannot be recorded in such a way that the appearance and demeanor of the deponent or attorneys are distorted. Fed.R.Civ.P. 30(b)(5)(B). At the same time, if the deposed party or counsel has concerns over the recording technique, the deposed party or counsel may choose an additional method of recording the deposition. Fed.R.Civ.P. 30(b)(3).

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Bluebook (online)
262 F.R.D. 552, 2009 U.S. Dist. LEXIS 117032, 2009 WL 4362988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pioneer-drive-llc-v-nissan-diesel-america-inc-mtd-2009.