United States District Court, D. Nevada
ORDER (DOCKET NO. 198)
J. KOPPE, United States Magistrate Judge
before the Court is Plaintiff's motion to take trial
depositions, filed on an expedited basis. Docket No. 198.
Defendant filed a response in opposition. Docket No. 200.
Plaintiff has agreed to forego the opportunity to file a
reply given the request for expedited review. Docket No. 198
at 9. The Court finds the motion properly resolved without a
hearing. See Local Rule 78-1. For the reasons
discussed below, the motion is hereby GRANTED.
instant dispute is whether Plaintiff may take depositions for
the purpose of trial of five witnesses. These witnesses have
long been included as witnesses Plaintiff intends to present
at trial. Docket No. 130 at 14-15 (joint pretrial order,
filed August 5, 2015, listing all five witnesses). As trial
now looms, “counsel has been unable to secure the
attendance of its two third-party vendor witnesses and all of
the foregoing witnesses reside outside the subpoena power of
this Court.” Docket No. 198 at 6. Defendant opposes the
motion on the basis that the discovery period closed long
ago, would require delaying trial, and would impose
additional costs on Defendant. See, e.g., Docket No.
200 at 4, 10. Plaintiff has the better argument based on the
circumstances of this case.
the Court is aware of contrary authority, including some
cited by Defendant, trial depositions needed to preserve
testimony are generally treated as distinct from discovery
depositions. See, e.g., United States v. Real
Property Located at 475 Martin Lane, Case No. CV 04-2788
ABC (MCx), 2006 WL 8421723, at *2 (C.D. Cal. July 24, 2016)
(discussing Estenfelder v. Gates Corp., 199 F.R.D.
351, 355 (D. Colo. 2001), Charles v. Wade, 665 F.2d
661, 664 (5th Cir. 1982), and Odell v. Burlington N.R.R.
Co., 151 F.R.D. 661, 663 (D. Colo. 1993)). Hence, the
passage of the discovery cutoff does not necessarily preclude
a party from obtaining trial depositions for witnesses who
are outside the subpoena power of the Court. See,
e.g., 475 Martin Lane, 2006 WL 8421723, at *2
(“Given the witnesses' unavailability, Plaintiff is
permitted to take preservation depositions despite the
passage of the discovery cut-off date”). Courts are
especially inclined to allow such depositions when there is a
lack of bad faith in any delay in obtaining them. See
id.; see also Estenfelder, 199 F.R.D. at 355
(distinguishing cases that had not allowed trial depositions
to be taken after the discovery cutoff for tactical reasons).
Courts will also consider whether the need for the
depositions is outweighed by prejudice or delay in allowing
them to occur. See Estenfelder, 199 F.R.D. at 356.
case, counsel has now become aware that various witnesses
with important testimony are unavailable. Docket No. 3-4,
There is no bad faith or tactical reason behind
Plaintiff's request to take the trial depositions at this
time. To the contrary, pro bono counsel has recently
entered the case and promptly brought this issue to the
Court's attention. Moreover, any prejudice to Defendant
is limited by the fact that his counsel may participate in
the depositions. Nor can Defendant be surprised by the
potential for such witness testimony to be used at trial, as
they were all disclosed as trial witnesses previously.
Lastly, while allowing these trial depositions will delay
these proceedings, including trial, a short delay relative to
the age of this case is outweighed by the other
considerations in this case and by the interest in allowing
the parties to present fully their cases at trial on the
merits. Cf. Estenfelder, 199 F.R.D. at 356 (a
contrary “result is a trial which is incomplete and
consistent with the requirements outlined herein, the motion
to take trial depositions is GRANTED. Such depositions shall
be conducted within 60 days of the issuance of this order.
 Defendant questions whether one of
these witnesses is unavailable. Docket No. 200 at 6-7
(indicating that Mr. Garner is willing to attend trial);
see also Id. at 8 (asserting that its not clear
whether the other witnesses are “truly
unavailable”). The fact that the witnesses are beyond
the subpoena power of this Court, see, e.g., Docket
No. 198 at 6, is a sufficient showing to allow the noticing
of the trial depositions, see, e.g., 475 Martin
Lane, 2006 WL 8421723, at *2. Nonetheless,
Plaintiff's notice of deposition shall make clear that
these depositions are for trial purposes only, and that such
a deposition need not proceed if a particular witness
certifies that he or she will appear at trial.
Defendant also asserts that it believes two of the
individuals named may well also act as corporate
representatives. Docket No. 200 at 8. To the extent that the
individual witnesses will also testify as corporate
representatives, counsel should meet-and-confer as to whether
that fact should impact the manner in which the trial
depositions are conducted.
Defendant protests that his counsel may be required to travel
for these depositions and incur expenses. Docket No. 200 at
10-11. At this point in time, the locations of the
depositions have not been set and consideration of such
issues are premature. To the extent the parties contest the
location of the deposition, the ability to appear at the
deposition remotely, and/or costs associated with the