United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
the Court are Plaintiff's Motion for Protective Order
[filed February 24, 2017; ECF No. 90] and
Defendants' Motion for Leave to Take Trial Deposition of
Kelley Doolan [“Doolan”] [filed March 9,
2017; ECF No. 102]. The motions are referred to this
Court for disposition. The matters were fully briefed March
27, 2017, and the Court finds oral argument (not requested by
the parties) would not materially assist the Court in its
adjudication of the motions.
the Court agrees with Plaintiff that, by filing their motion
for leave to take Doolan's deposition, the Defendants
essentially abandoned their notice and subpoena to take the
deposition of a corporate representative of Platts.
See ECF No. 90-1. In this sense, and because the
Court finds the notice and subpoena to be seeking an untimely
discovery deposition, the Court grants Plaintiff's motion
for an order prohibiting what appears to be a deposition
pursuant to Fed.R.Civ.P. 30(b)(6).
the Court must determine whether Defendants' request to
take Doolan's deposition is untimely. The Court agrees
with those courts acknowledging the distinction between
depositions taken for the purpose of discovery and those
taken for the purpose of preserving trial testimony. See
Estenfelder v. Gates Corp., 199 F.R.D. 351, 355 (D.
Colo. 2001); Merlin v. Crawford, No.
14-cv-01150-REB-NYW, 2016 WL 814580, at *2 (D. Colo. Mar. 2,
2016); Mathews v. Denver Newspaper Agency LLP, No.
07-cv-02097-WDM-KLM, 2009 WL 112819, at *1 (D. Colo. Jan. 15,
2009). That is, if the purpose for taking the deposition is
to discover information not known, then any such deposition
sought after the discovery period is typically disallowed as
untimely and prejudicial.
Defendants identify Doolan as “a witness with knowledge
of how Platts calculated the Inside FERC Columbia Appalachia
index (the ‘Columbia Appalachia Index' or
‘Index') before and after the parties'
dispute.” Motion, ECF No. 102 at 2. Plaintiff contends
that Doolan was listed as a potential witness early in the
litigation and that Defendants affirmatively chose not to
take his deposition; as such, Defendants should not be
permitted now to take Doolan's deposition, which is
merely sought for purposes of discovering information from
him. Defendants counter that they do, in fact, know how
Doolan will testify and, because he resides in Washington,
D.C., he will be unavailable to attend the trial in this
determining whether to exclude evidence, the Tenth Circuit
has delineated the following factors to consider:
(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.
Summers v. Mo. Pac. RR Sys., 132 F.3d 599, 604 (10th
Cir. 1997). The Summers court emphasized that
“[t]he decision to exclude evidence is a drastic
sanction.” Id. A s i n Estenfelder,
this Court finds the same factors applicable to a
determination of whether to permit a preservation deposition.
See 199 F.R.D. at 356.
regarding any prejudice against the Plaintiff, the Court
finds no surprise to any party concerning Doolan's
knowledge or role in the subject matter of this case,
particularly since both parties agree he was identified as a
witness early in the litigation and documents in which he was
identified were produced by his former employer, Platts.
See Scheduling Order, ECF No. 31. However, the Court
would find prejudice to the Plaintiff if the Defendants
intended to discover new information in the case through
Doolan's deposition. Plaintiff argues that Defendants
“do not know the content of Mr. Doolan's
testimony” and “seek[ ] to use [Doolan] as a
quasi-corporate representative for Platts.” Reply, ECF
No. 112 at 5.
Plaintiff challenges the deposition topics set forth in the
subpoena served on Doolan (see Response, ECF No. 113
at 5-7 (“neither party knows what Mr. Doolan will
testify about to many of the broad topics identified in the
Doolan subpoena”)), but Plaintiff does not mention the
“evidence which appear[s] in the documents produced by
Platts, and which South Jersey seeks to preserve for
trial” listed in Defendants' motion. Certainly, it
appears the “topics of deposition” listed in the
Doolan subpoena (ECF No. 96-1) are broader than the
information Defendants seek to preserve; for example, topics
## 1, 8, and parts of 9 appear to seek information that does
not involve “how Platts calculated the Inside FERC
Columbia Appalachia index.” As such, the Court will
grant Plaintiff's motion for protective order concerning
these broad deposition topics.
Plaintiff provides no argument rebutting the Defendants'
contention that the parties have knowledge of Doolan's
testimony specifically concerning Platts' calculation of
the Columbia Appalachia Index. See Resp., ECF No.
113. As such, the Court finds the Defendants may videotape
Doolan's testimony to preserve it for trial,
limited solely to the following information:
1. How natural gas prices reported to Platts were used to
calculate the Columbia Appalachia index under the definition
that was in effect prior to December 1, 2014;
2. The criteria used by Platts to exclude reported trades as
“outliers, ” and its application of this practice
to the calculation of the Columbia Appalachia index in 2014;
3. Platts' inclusion of reported trade prices that fell
within the definition of the Columbia Appalachia index during
trade date October 3 and flow dates October 4-6, and trade
date October 6 and flow date October 7, ...