United States District Court, D. Nevada
ORDER REGARDING EVIDENTIARY ISSUES (ECF Nos. 49, 50,
P. GORDON UNITED STATES DISTRICT JUDGE
trial brief, plaintiff Artano Aidini seeks rulings on three
evidentiary issues. Defendant Costco objects to Aidini's
proposed demonstrative exhibits.
requests an adverse inference jury instruction due to
Costco's failure to preserve and produce video from three
other cameras in the store. ECF No. 108 at 13. Aidini states
that "[t]hese additional camera angles would have better
shown the box placement and fall." Id. Aidini
offers no proof of this allegation and Costco responds that
the cameras did not capture such images. ECF No. 109 at 6.
The examples attached as Exhibit 3 to Aidini's trial
brief do not confirm those cameras would have captured
relevant and usable evidence. Finally, Aidini did not timely
raise this issue during discovery. There is insufficient
evidence to justify an adverse inference jury instruction
based on spoliation, so I deny Aidini's request.
also requests an adverse inference jury instruction due to
Costco's failure to preserve and produce the box Aidini
allegedly slipped on. ECF No. 108 at 13. Again, Aidini did
not timely raise this issue during discovery. There is no
proof that Costco had identified the actual box at issue or
its location at the time of the accident. And given the
activity in the area immediatelyaround Aidini after the fall
(including being treated on scene and transported by
ambulance), it is reasonable to assume that the box could
have been moved or mixed in with other boxes, rendering it
impossible to identify the specific box and its original
location. Because Aidini has not sustained his burden of
demonstrating that Costco intentionally or negligently failed
to preserve the box, he is not entitled to an adverse
inference jury instruction. Aidini may argue to the jury that
Costco could or should have preserved the box and that the
jury can make inferences from its failure to do so. But the
court will not bolster such an argument with a jury
of depositions of Le and Ramsey
next argues that he should be allowed to use the depositions
of Michael Le and Ryan Ramsey during his opening statement.
ECF No. 108 at 14. "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)(3). Costco objects because Le and Ramsey
were not deposed under Rule 30(b)(6). True, but that ignores
the prior phrase of Rule 30(b)(3), which focuses on whether
the deponent "was the party's officer, director,
[or] managing agent. . . ."
test for a managing agent is not formulaic but is answered
pragmatically on a fact-specific basis." Reddv. N.Y.
State Div. of Parole, 923 F.Supp.2d 393, 409 (E.D.N.Y.
2013) (quotations omitted). In making that determination,
courts consistently consider the following factors:
(1) whether the individual is invested with general powers
allowing him to exercise judgment and discretion in corporate
matters; (2) whether the individual can be relied upon to
give testimony, at his employer's request, in response to
the demand of the examining party; (3) whether any person or
persons are employed by the corporate employer in positions
of higher authority than the individual designated in the
area regarding which information is sought by the
examination; (4) the general responsibilities of the
individual respecting the matters involved in the litigation.
Calderon v. Experian Info. Sols., Inc., 290 F.R.D.
508, 517-18 (D. Idaho 2013) (citations
time of his deposition, Le was an administrative manager for
Costco. ECF No. 108-2 at 15:14-17. He held the same position
at the time of the accident, and was responsible for the
entire store. Id. at 17:1-18:5. At the time of his
deposition, Ramsey was an assistant general manager for
Costco. ECF No. 108-1 at 14:17-22. At the time of the
accident, Ramsey was the front-end manager, overseeing
operations of the front end of the store, which includes the
area where the accident occurred. Id. at 17:9-18:13.
is no evidence that Le and Ramsey had authority to exercise
judgment and discretion on Costco corporate matters, as
opposed to matters regarding the particular store. It appears
they could be relied upon to give testimony, at Costco's
request, in response to Aidini's demand, and they could
be expected to identify themselves with Costco's
interests as opposed to Aidini's interests. Honda
Am., 168 F.R.D. at 540. Given their various job duties,
it appears that they had significant responsibilities for the
store-and the specific location within the store where the
accident happened. Thus, I grant Aidini's request to use
the depositions of Michael Le and Ryan Ramsey during his
objects to Aidini's attempt to use a photograph of the
hardware used in his surgery. ECF No. Ill. at 1. Provided
proper foundation is laid for this ...