Roberts v. Homelite Division of Textron, Inc.

109 F.R.D. 664, 1986 U.S. Dist. LEXIS 27722
CourtDistrict Court, N.D. Indiana
DecidedMarch 25, 1986
DocketCiv. No. H 85-183
StatusPublished
Cited by15 cases

This text of 109 F.R.D. 664 (Roberts v. Homelite Division of Textron, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Homelite Division of Textron, Inc., 109 F.R.D. 664, 1986 U.S. Dist. LEXIS 27722 (N.D. Ind. 1986).

Opinion

ORDER

ANDREW P. RODOVICH, United States Magistrate.

This matter has been referred to the Magistrate by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A) for ruling on the Motion for Order Approving the Recording of Depositions by Video Tape filed by the defendant, Homelite Division of Textron, Inc., on December 2, 1985. It is hereby ORDERED that the motion be GRANTED.

Factual Background

On February 14, 1985, the plaintiffs, Wilfred Roberts and Lois Roberts, filed a complaint against the defendant, Homelite Division of Textron, Inc. (hereafter Homelite), seeking compensation for personal injuries sustained by Wilfred Roberts (hereafter Roberts) while attempting to start a lawn mower. The complaint alleges that Roberts, an authorized dealer of Jacobsen lawn mowers, lost a portion of his left hand while servicing a lawn mower prior to its sale. Homelite, as manufacturer of the lawn mower, allegedly is liable for the injuries based upon principles of products liability.

The underlying facts supporting Roberts’ claim disclose that on July 13, 1983, Roberts received a Jacobsen lawn mower at his place of business. Upon unpacking the lawn mower, Roberts attempted to start it, but the mower neither started nor turned over. Roberts then placed the lawn mower on a workbench, and with the aid of Paul Kurzja, made an attempt to start the engine. While on the workbench, the mower started, “lurched” forward, and the blades struck a portion of Roberts’ left hand, resulting in serious injury.

On December 2, 1985, Homelite filed a Motion for Order Approving the Recording of Depositions by Video Tape pursuant to Rule 30(b)(4) of the Federal Rules of Civil Procedure. Homelite seeks an order permitting it to take the depositions of the plaintiff, Wilfred Roberts, and his assist[666]*666ant, Paul Kurzja. Homelite requests that the deposition be taken at the place where the accident occurred with both the workbench and lawn mower involved in the accident being available. Apparently Homelite intends to re-enact the incident as it occurred on July 13, 1983, to aid in its determination of what exactly occurred on that date. In support of its motion and in, the interest of reliability and economy, Homelite set forth specific suggested procedures to be followed by the parties during the video tape session.

On December 16, 1985, Roberts filed a memorandum in opposition to the Rule 30(b)(4) motion. Roberts opposes the video taped deposition based upon Homelite’s failure to establish (1) that either witness will be unavailable to testify at trial or (2) that the use of the video tape will reduce the cost of taking depositions. Roberts argues that the use of a video taped deposition will not aid in the discovery process and that Homelite has failed to provide the Court with sufficient safeguards to assure the accuracy and trustworthiness of the depositions. Finally, it is alleged that an attempt to re-enact the incident constitutes an improper discovery procedure.

Discussion

Pursuant to its Rule 30(b)(4) motion, Homelite seeks to take the depositions of Wilfred Roberts and Paul Kurzja by “other than stenographic means.” Rule 30(b)(4) provides:

The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense.

The rule contemplates only two methods for non-stenographic recording of a deposition: (1) a stipulation by the parties in writing or (2) a court order approving an alternative method. Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (D.C.Cir.1985).

Rule 30(b)(4) does not authorize any party to video tape a deposition as a matter of right. This is reflected by the Advisory Committee in their notes to the 1980 amendments to the rule:

Subdivision (b)(4). It has been proposed that electronic recording of depositions be authorized as a matter of course, subject to the right of a party to seek an order that a deposition be recorded by stenographic means. The Committee is not satisfied that a case has been made for a reversal of present practice. The amendment is made to encourage parties to agree to the use of electronic recording of depositions so that conflicting claims with respect to the potential of electronic recording for reducing costs of depositions can be appraised in the light of greater experience.

Neither the rule itself nor the notes of the Advisory Committee list the criteria which the trial court should use in exercising its discretion under Rule 30(b)(4). Although a conflict exists among the federal courts as to the proper range of discretion,1 [667]*667the better reasoned view gives the trial court the same discretion which it enjoys in resolving all other discovery disputes.

The only possible guidance provided by the Advisory Committee in exercising this broad discretion in a Rule 30(b)(4) motion is found in the following note to the 1970 amendments:

Subdivision (b)(4). In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means — e.g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary.

A reading of the 1970 Advisory Committee Notes emphasizes the importance of cost reduction factors, as well as the accuracy and trustworthiness of the non-stenographic recording. A reading of the 1980 Advisory Committee Notes emphasize free experimentation and the benefits to be derived from technological advancements in the recording field.

In addition to considering cost, accuracy, and experimentation, case law indicates that the availability of the witness to testify at trial is relevant to a court’s determination. See Sandidge v. Salem Offshore Drilling Co., 764 F.2d 252, 259 n. 6 (5th Cir.1985) and cases cited therein. Video taped depositions are advantageous

[i]n that the finder of fact at trial often will gain greater insight from the manner in which an answer is delivered and recorded by audio-visual devices. Moreover, a recording, a video tape, or a motion picture of a deposition will avoid the tedium that is produced when counsel read lengthy depositions into evidence at the trial.
Wright and Miller, 8 Federal Practice and Procedure, § 2115 at 426 (1985 Supp.).

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Bluebook (online)
109 F.R.D. 664, 1986 U.S. Dist. LEXIS 27722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-homelite-division-of-textron-inc-innd-1986.