Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc.

114 F.R.D. 647, 1987 U.S. Dist. LEXIS 13903
CourtDistrict Court, M.D. North Carolina
DecidedFebruary 24, 1987
DocketNo. C-86-992-G
StatusPublished
Cited by21 cases

This text of 114 F.R.D. 647 (Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc.) 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
Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 1987 U.S. Dist. LEXIS 13903 (M.D.N.C. 1987).

Opinion

ORDER

RUSSELL A. ELIASON, United States Magistrate.

Plaintiff seeks blanket permission to video record all depositions in this case. Defendants oppose granting a carte blanche license for a variety of reasons. First, defendants assert that commercial litigation, by its nature, relies more on documents and figures and, therefore, there is less need for a video deposition in order to judge the demeanor of a witness. Next, they object to the unlimited nature of the request. Plaintiff has not restricted itself to taping depositions of persons residing outside the subpoena power of the Court or key witnesses whose sudden unavailability would create a hardship. Many of the depositions may simply be used for discovery which, defendants claim, should not be the subject of a video deposition. They oppose permitting plaintiffs attorneys operating the video equipment and want an independent operator. Finally, defendants gener[648]*648ally object to the extra cost and disruption brought about by a video deposition.

Starting with defendants’ claim that video depositions are not needed for commercial litigation, the Court disagrees. The mere description of the lawsuit does not reveal whether video depositions are helpful. For example, plaintiff is challenging the defendants’ plan for allocating automobiles to its dealers. Restrictive allocation arose because of voluntary restraints imposed by Japan on shipment of its cars to the United States which creates a scarcity, requiring a distribution plan. The present procedure allocates cars based on the amount of a dealer’s sales. While seemingly fair, some dealers allegedly seek to increase their share by reporting sham sales to a holding company, and by currying favor with the distributors such as by ordering cars loaded with highly profitable accessories or pushing unwanted warranty programs on the buyer. Many of North Carolina’s thirty-nine dealers and their sales managers may well deny the truth of these allegations since it would implicate them in defendants’ violations and perhaps lead to a reduction of the automobiles they receive. Accepting plaintiff’s recitation as true, video depositions may be extremely valuable by capturing the demeanor, hence credibility, of these witnesses.

On the other hand, one must agree with defendants that at first blush, plaintiff’s request to video record all depositions seems unwarranted and perhaps contrary to the rules of civil procedure. Closer inspection considerably abates the concern. The Court agrees with defendants that plaintiff is required to demonstrate need before being permitted to take a non-stenographic deposition. Rule 30(b)(4), Fed.R.Civ.P., contemplates that a non-stenographic deposition will be taken only upon written stipulation of the parties or upon motion and order of the court. Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (D.C.Cir.1985). The rule does not authorize a non-stenographic deposition as a matter of right. Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664, 666 (N.D.Ind.1986), and Fed.R.Civ.P. 30 advisory committee notes (1980 Amendment) reporting rejection of such a proposal. In order to utilize non-stenographic deposition methods, a party must show more than a personal preference for recording in such a manner. Colonial Times, Inc. v. Gasch, 509 F.2d 517, 522 n. 10 (D.C.Cir.1975).

While Rule 30(b)(4) requires some justification for employing a non-stenographic deposition, its history also indicates that experimentation is to be encouraged. In 1970, Rule 30(b)(4) was amended to permit non-stenographic recording such as by mechanical, electronic, or photographic means. See Fed.R.Civ.P. 30 advisory committee notes (1970 Amendment). The Advisory Committee advanced reduced costs as a reason for permitting such procedures. Because of its concern for accuracy and trustworthiness of new, untried methods, the Committee felt that a party should be required to apply for a court order before employing a novel recording method. By 1980, the rule was amended to permit non-stenographic depositions upon the stipulation of the parties. The Advisory Committee Notes by this time emphasized the need to permit freer experimentation in order to derive the benefits from technological advances in recording. Roberts v. Homelite Div. of Textron, Inc., supra, at 667; Jahr v. IU Intern. Corp., 109 F.R.D. 429, 431 (M.D.N.C.1986). As part of the plan to encourage the use of, and experimentation in, different recording methods, Rule 30(b)(7) was amended to permit telephonic depositions upon order of the court. Jahr, supra. Rule 30(b)(4) has been viewed as embodying an “invitation to experiment.” Lucas v. Curran, 62 F.R.D. 336, 338 (E.D.Pa.1974).

In accepting the invitation to experiment, courts should be amenable to technological advances, which provide opportunities to improve judicial procedures, even though not contemplated by the rule makers. As stated by the Court in Matter of Daniels, 69 F.R.D. 579, 581 (N.D.Ga.1975), with respect to video depositions: “The court should not be like an ostrich, sticking [649]*649its head in the sand and being oblivious to advances in technology which can aid in the judicial process.” In general, whenever accuracy and trustworthiness can be ensured, it is the better practice to permit electronic recordation of depositions. Barham v. IDM Corp., 78 F.R.D. 340, 341 (N.D.Ohio 1978). Notwithstanding, a literal interpretation of the Fed.R.Civ.P. 30 advisory committee notes (1970 Amendment) led one court to express an opinion that experimentation may only be countenanced when the result leads to cost savings for the parties. Perry v. Mohawk Rubber Company, 63 F.R.D. 603, 607 (D.S.C.1974), aff'd on other grounds, 529 F.2d 516 (4th Cir.1976). This restrictive reading should be reconsidered in light of the continued encouragement of experimentation expressed in the Fed.R.Civ.P. 30 advisory committee notes (1980 Amendment) and to ensure that the courts will be receptive to the benefits which advances in technology may provide in enhancing “just and expeditious determination of litigation.” Matter of Daniels, supra, at 581-82; see Roberts v. Homelite Div. of Textron, Inc., supra. Also, the Fed.R.Civ.P. 30 advisory committee notes did not contemplate the use of video depositions so the expressed concerns about cost may not be applicable. See Matter of Daniels, supra, at 582.

In applying Rule 30(b)(4) to video depositions, courts have good reason to be receptive to experimentation while not demanding cost efficiency as an essential condition. At the present time, a wish to reduce costs usually has little to do with a request to take a video deposition. Rather, the movant is more concerned with accuracy, trustworthiness, and improved judicial procedures, all of which are also major interests expressed in the Fed.R.Civ.P.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Crawford v. BARR
W.D. Tennessee, 2024
Haney v. Verizon Wireless
E.D. North Carolina, 2023
Schoolcraft v. City of New York
296 F.R.D. 231 (S.D. New York, 2013)
Ex Parte Wisconsin Phys. Service Ins. Corp.
800 So. 2d 588 (Supreme Court of Alabama, 2001)
Longo v. Wal-Mart Stores, Inc.
79 F. Supp. 2d 169 (E.D. New York, 1999)
Emerson Electric Co. v. Superior Court
946 P.2d 841 (California Supreme Court, 1997)
Ott v. Stipe Law Firm
169 F.R.D. 380 (E.D. Oklahoma, 1996)
Gillen v. Nissan Motor Corp.
156 F.R.D. 120 (E.D. Pennsylvania, 1994)
Weiss v. Wayes
132 F.R.D. 152 (M.D. Pennsylvania, 1990)
Inhofe v. Wiseman
772 P.2d 389 (Supreme Court of Oklahoma, 1989)
Thomas Carey v. Bahama Cruise Lines
864 F.2d 201 (First Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
114 F.R.D. 647, 1987 U.S. Dist. LEXIS 13903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rices-toyota-world-inc-v-southeast-toyota-distributors-inc-ncmd-1987.