United States District Court, D. Hawaii
CLIFFORD MCARTHUR RIGSBEE, as Personal Representative of the Estate of Clifford Meredith Rigsbee, deceased, Plaintiff,
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.
GILLMOR, UNITED STATES DISTRICT JUDGE
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”).
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.
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.
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
(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
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.
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 ...