United States District Court, D. Colorado
Nina Y. Wang United States Magistrate Judge.
This civil action is before the court on Defendants’ Motion for Leave to Take the Preservation Depositions of Kelly Glenn, M.D. and John Nystrom, M.D. (“Motion to Take Preservation Depositions”). [#50, filed February 17, 2016]. The matter was referred to this Magistrate Judge pursuant to the Order Referring Case dated April 23, 2015 [#4] and the memorandum dated February 17, 2016. [#51]. Plaintiff filed a Response on February 18, 2016. [#52]. I have reviewed the instant Motion and Response, the relevant case law, and legal authority, and find that oral argument would not materially assist in my determination. The Motion to Take Preservation Depositions is DENIED for the reasons discussed below.
This action arises out of a single claim for damages brought pursuant to 42 U.S.C. § 1983 for violation of Plaintiff’s Fourth and Fourteenth Amendment rights resulting from Defendants Logann Crawford and Scott Schaeffer’s (collectively, “Defendants”) allegedly unlawful search and seizure and use of excessive force in the arrest and detainment of Plaintiff Brenton Merlin. See [#1]. Plaintiff filed a Complaint through his attorneys on April 22, 2014 [id.]; and following permissions of extensions of time to serve Defendants [#8; #10; #17; #19], a motion for extension of time to answer, which was granted [#22; #24], and waiver of service [#27], Defendants filed separate Answers on November 18, 2014 [#25] and March 11, 2015 [#30]. This court held a Scheduling Conference on May 21, 2015, at which the undersigned ordered the Parties to complete discovery by November 19, 2015, file dispositive motions by December 18, 2015, and prepare for a Final Pretrial Conference to be held March 11, 2016. [#34; #35]. The Honorable Robert E. Blackburn, the presiding judge in this matter, issued a Trial Preparation Conference Order the following day, setting a jury trial to begin March 28, 2016. [#36]. On October 7, 2015, Defendants filed an unopposed motion to amend the Scheduling Order to extend multiple pre-trial deadlines. See [#44]. This court granted the motion in part, and extended the discovery deadline to December 7, 2015. [#46]. None of the Parties filed dispositive motions by the deadline. On February 17, 2016, Defendants filed the instant Motion, asking the court for leave to take preservation depositions of Dr. Glenn and Dr. Nystrom (the “Physicians”) pursuant to Rules 32(a)(4)(B) and (E) of the Federal Rules of Civil Procedure.
I. Applicable Law
Federal Rule of Civil Procedure 26(b)(1) authorizes discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, ” considering, in pertinent part, the parties' relative access to relevant information and whether the burden or expense of the proposed discovery outweighs its likely benefit. All discovery is subject to the proportionality limitations imposed by Rule 26(b)(2)(C). See Fed. R. Civ. P. 26(b)(1). Therefore, while the court may order discovery of any matter relevant to the issues involved in the action, it “must limit the frequency or extent of discovery” under certain circumstances, including if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, ” or the party seeking discovery “has had ample opportunity to obtain the information by discovery in the action.” Fed.R.Civ.P. 26(b)(2)(C)(i)-(ii) (emphasis added).
A party may use at trial the deposition of a witness, whether or not a party, if the witness, barring exceptions not relevant here, is more than 100 miles from the place of trial, or “if exceptional circumstances make it desirable-in the interest of justice and with due regard to the importance of live testimony in open court-to permit the deposition to be used.” Fed.R.Civ.P. 32(a)(4)(B) and (E). Leave of court is required to take a deposition of a person who has previously been deposed in the case. Fed.R.Civ.P. 30(a)(2)(A)(ii).
Defendants seek leave to take the depositions of Dr. Glenn and Dr. Nystrom, two of Plaintiff’s treating physicians. Defendants represent they learned on February 10, 2016 that the Physicians will be unavailable to testify at the trial scheduled to begin March 28, 2016: “Dr. Glenn is contractually obligated to provide medical services in Alabama from March 25 to April 1, 2016, and Dr. Nystrom will be in California during the time at which trial will take place.” [#50 at 2]. Defendants previously deposed Dr. Glenn on November 9, 2015, and deposed Dr. Nystrom on November 25, 2015. They wish to depose the Physicians a second time so as to video tape their testimony, explaining, “video testimony from both doctors is much more preferable than simply having one of undersigned counsel read from their respective depositions transcripts.” [Id. at 3]. Defendants further note that the Physicians live and work in the Glenwood Springs, Colorado area, which is approximately 158 miles from the courthouse where trial is to take place. Plaintiff objects to the preservation depositions on the basis that Defendants provide no explanation as to why they did not determine the trial availability of the Physicians prior to February 2016, Defendants have already taken the Physicians’ depositions and thus now seek a second bite of the apple, and a second round of depositions would prejudice Plaintiff by using his attorneys’ resources to defend the depositions five weeks in advance of trial and forcing him to incur costs that were previously incurred. [#52]. Plaintiff finally notes that the Physicians are Defendants’ witnesses and are hostile to Plaintiff. [Id. at 7].
Defendants’ main contention in support of their Motion is that their request is for trial depositions-to preserve testimony for trial-rather than discovery depositions, and that the court should allow such depositions because “the parties already know the content of both doctor’s respective testimony.” [#50 at 2-3]. Defendants cite to Estenfelder v. Gates Corp., 199 F.R.D. 351, 354 (D. Colo. 2001) and Odell v. Burlington N. RR Co., 151 F.R.D. 661, 663 (D. Colo. 1993) for support. Defendants are correct that while the Federal Rules of Civil Procedure do not explicitly distinguish between discovery and trial depositions, this District generally recognizes practical differences between the two. This court also agrees that Defendants are seeking trial depositions as opposed to discovery depositions, and the discovery cut-off does not necessarily “prevent a party from memorializing a witness' testimony in order to offer it at trial.” Estenfelder, 199 F.R.D. at 354 (citing Spangler v. Sears, Roebuck and Co., 138 F.R.D. 122, 124 (S.D. Ind. 1991). See also Prince Lionheart, Inc. v. Halo Innovations, Inc., No. 06-cv-00324- WDM-KLM, 2007 WL 2935818, at *2 (D. Colo. Oct. 5, 2007) (allowing preservation deposition of witness after close of discovery, where she had submitted an inadmissible declaration but had not been deposed); Netquote, Inc. v. Byrd, No. 07-cv-00630-DME-MEH, 2008 WL 659741 (D. Colo. Mar. 6, 2008) (allowing preservation depositions of certain witnesses after close of discovery).
In Estenfelder, the court granted the motion to take preservation depositions of witnesses who were outside the subpoena power of the court and who had not been deposed prior to the discovery cut-off. In acknowledging the Tenth Circuit’s aversion to “total inflexibility, ” and the guidance that “[the decision to exclude evidence [because of untimeliness] is a drastic sanction], ” the Estenfelder court considered four factors in its decision whether to exclude evidence:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in court, and (4) bad faith or willfulness in failing to comply with the court's order.
Estenfelder, 199 F.R.D. at 355-56 (quoting Summers v. Missouri Pacific Railroad System, 132 F.3d 599, 604 (10th Cir. 1997)). Se ...