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Rigsbee v. City and County of Honolulu

United States District Court, D. Hawaii

March 7, 2019

CLIFFORD MCARTHUR RIGSBEE, as Personal Representative of the Estate of Clifford Meredith Rigsbee, deceased, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 1 REGARDING USE OF 30(B)(6) DEPOSITION TESTIMONY (ECF No. 137)

          HELEN GILLMOR, UNITED STATES DISTRICT JUDGE

         Plaintiff Clifford McArthur Rigsbee, representative of the Estate of the Decedent, seeks to utilize at trial, in its case presentation, a designated portion of the Fed.R.Civ.P. 30(b)(6) videotaped deposition of Honolulu Fire Department (“HFD”) Battalion Chief Jeffrey Hooker (“Battalion Chief Hooker”) and Ocean Safety Chief Kevin Allen (“Chief Allen”).

         Plaintiff wishes to limit the designated portions of the deposition testimony to ninety-five (95) minutes. The video deposition would be offered in Plaintiff's case-in-chief in lieu of Plaintiff's live direct examination. Following Plaintiff's direct examination, Battalion Chief Hooker and Chief Allen would be available for cross-examination.

         Defendant City and County of Honolulu opposes the use of the deposition testimony. Defendant indicates that if Plaintiff is permitted to play the videotaped testimony, fairness requires the entire two-hundred thirty-five (235) minutes be played (pursuant to Fed.R.Civ.P. 32(a) and Fed.R.Evid. 106). Defendant also argues that because both Battalion Chief Hooker and Chief Allen are available to testify live at trial, their live testimony is preferable.

         STANDARD OF REVIEW

         Fed. R. Civ. P. 32 governs the use of depositions in court proceedings and permits their use if the conditions set forth in Fed.R.Civ.P. 32(a) are met:

(a) Using Depositions.

(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).

Fed. R. Civ. P. 32(a)(3) provides that an “adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).”

         Fed. R. Civ. P. 30(b)(6) provides in part:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.

         ANALYSIS

         There is a strong preference for live testimony over recorded testimony. 7 James Wm. Moore et al., Moore's Federal Practice § 32.02; Beem v. Providence Health & Services, No. 10-CV-0037-TOR, 2012 WL 13018728 (E.D. Wash. Apr. 19, 2012) (citing Napier v. Bossard, 102 F.2d 467 (2nd Cir. 1939)(Learned Hand, J.)(“The deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand.”)). District courts are reluctant to ...


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