United States District Court, S.D. Indiana, Indianapolis Division
NATIONAL FOUNDATION FOR SPECIAL NEEDS INTEGRITY, INC., Plaintiff/Counterdefendant,
DEVON C. REESE, as Personal Representative for THE ESTATE OF THERESA A. GIVENS, deceased, Defendant/Counterclaimant.
ENTRY AND ORDER GRANTING MOTION FOR PROTECTIVE ORDER
IN PART [DOC. 92]
K. LaRue United States Magistrate Judge.
filed a Motion for Protective Order, seeking to
prevent the December 19, 2016, depositions of Andrea
McGaughey and Erin Ostmann. Defendant has responded, and
Plaintiff filed a reply. In the response, Defendant states
that the Estate has decided to withdraw the Notice of
Deposition and Subpoena for McGaughey. Consequently, the only
matter remaining is the deposition of Ostmann. For the
following reasons, the Court finds that the motion should be
closed on April 1, 2016. District Judge Tanya Walton Pratt
issued her Entry on Cross Motions for Summary
Judgment on October 26, 2016. Thereafter,
Defendant's counsel emailed Plaintiff's counsel
expressing a desire to take Ostmann's deposition for
trial because she was outside the Court's power to
subpoena her to testify at trial. Ostmann was one of Theresa
Givens' dialysis aides; Ostmann also was a witness to the
Joinder Agreement and her handwriting is the writing on the
Joinder Agreement. On December 6, 2016, the deposition was
noticed for December 19, 2016, in St. Louis, Missouri.
Federal Rules of Civil Procedure do not distinguish between
“discovery” and “trial” depositions.
Geneva Mfg., LLC v. Grand & Benedicts, Inc., No.
13-cv-1274, 2015 WL 6685386, at *1-2 (E.D. Wis. Oct. 29,
2015); Estate of Gee ex rel. Beeman v. Bloomington Hosp.
& Health Care Sys., No. 1:06-cv-00094-TWP-TAB, 2012
WL 729269, at *6 (S.D. Ind. Mar. 6, 2012). However, some
courts have drawn a distinction between depositions taken
during the course of discovery and trial depositions.
See, e.g., Estate of Gee, 2012 WL 729269, at *6;
Spangler v. Sears, Roebuck & Co., 138 F.R.D.
122, 124-25 (S.D. Ind. 1991). Depositions taken during
discovery are taken “with the goal of ascertaining new
information, ” whereas “trial depositions [are]
taken to preserve information that the party already has
knowledge of, but would be otherwise unavailable.”
Stuhlmacher v. Home Depot U.S.A., Inc., No.
2:10-cv-00467-APR, 2014 WL 835382, at *2 (N.D. Ind. Mar. 4,
2014). The court's scheduling order for discovery does
not prevent a party from taking a trial deposition.
Id.; Estate of Gee, 2012 WL 729269, at *6.
when a party opposes a deposition scheduled after the close
of discovery, the court is tasked with deciding whether the
deposition “is actually being taken to preserve trial
testimony, or if that is merely an after-the-fact excuse to
take a belated discovery deposition.” Estate of
Gee, 2012 WL 729269, at *6. In making this decision, the
Court should consider several factors, “including the
unavailability of the witness for trial, the potential for
prejudice to the opposing party, and whether the deposing
party knew the information the potential witness would
testify to prior to the deposition, ” placing special
emphasis on the potential for prejudice. Id.
(quotation and citation omitted).
Ostmann is outside the Court's subpoena power because she
lives in St. Louis, Missouri, this is something Defendant
should have taken into account earlier; her unavailability
did not develop since the close of discovery. According to
Defendant's Response to NFSNI's Objections
[doc. 97 at 3], Ostmann was listed as a potential witness of
Defendant back in December 2015, well before the close of
discovery. But it seems her importance became evident to
Defendant only after the summary judgment ruling in October
of this year. As stated in defense counsel's November 30,
2016 email, Ostmann was not viewed as a “necessary
witness” until after that ruling. [NFSNI's
Objections, Ex. F, doc. 91-6.]
has not shown that the deposition of Ostmann is for the
purpose of preserving testimony rather than seeking new
information. When asked what her anticipated testimony would
be, defense counsel claimed that whether they had talked with
Ostmann was work product. The Court disagrees that a
witness's anticipated testimony would constitute work
product. No indication was given as to what Ostmann's
testimony was expected to be. And none has been offered in
response to the motion for protective order. Thus, Defendant
has not shown that the deposition would be for the purpose of
preserving information it already knows.
appears that Defendant wants to depose Ostmann to establish
that it is her handwriting on the fill-in sections of the
Joinder Agreement. Plaintiff is correct: this is discovery
seeking, not evidence preserving. Yet Defendant identified
Ostmann as a potential witness back in December 2015 and did
not seek to depose her before the discovery deadline expired.
It seems that Plaintiff would be prejudiced by allowing the
deposition at this late hour. Because discovery is now
closed, Plaintiff could not seek discovery of new matters
that come to light during the deposition.
Court finds that the deposition of Ostmann is a belated
discovery deposition. Good cause has not been shown to modify
the scheduling order and allow the deposition after the close
of discovery, as Federal Rule of Civil Procedure 16(b)
requires. Accordingly, with the understanding that Defendant
no longer seeks to depose Andrea McGaughey, the Motion
for Protective Order ...