The bench, bar, the state of Indiana and our community all lost an outstanding jurist and dear friend with the recent passing of United States Judge Denise LaRue. Beyond her tremendous intellect, talent, experience and skills, she was simply an extraordinarily nice person in every setting.
After a distinguished career serving first with the Indiana Civil Rights Commission and then representing plaintiffs in employment matters, Judge LaRue was appointed by the court as U.S. magistrate judge in May of 2011. In her tenure on the bench, she had a great impact in many ways: resolving challenging cases; conducting trials and hearings skillfully; and writing important judicial opinions on a wide array of topics. Notably she did all this without ever raising her voice, and while treating all counsel and litigants with utmost respect. She will be sorely missed by all, and we can honor her by striving to be more like her every day.
As this column’s focus is always federal civil procedure and practice, Judge LaRue’s contributions in this realm are significant, particularly considering her tenure was cut so short by her early passing. A Lexis search reveals 368 opinions she authored, many of which have longstanding value as precedent on procedural rules and issues.
One of her most recent opinions is informative on discovery deadlines and depositions. In Nat’l Found. for Special Needs Integrity, Inc. v. Reese, 2016 U.S. Dist. LEXIS 175466 (S.D. Ind. Dec. 20, 2016), discovery closed on April 1, 2016, and the court had issued a ruling on cross-motions for summary judgment in October 2016. Thereafter, as trial approached, defendant sought to depose an out-of-state witness. Plaintiff moved for a protective order, which defendant opposed.
Judge LaRue granted the protective order, and in so doing provided important guidance on discovery deadlines, “discovery” versus “trial” depositions, work product, and burdens to establish good cause to alter deadlines after the close of discovery. As a small gesture of honor to Judge LaRue, the core of her opinion is set forth verbatim:
The 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 U.S. Dist. LEXIS 146892, 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 U.S. Dist. LEXIS 29404, 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 U.S. Dist. LEXIS 29404, 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 U.S. Dist. LEXIS 27249, 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 U.S. Dist. LEXIS 29404, 2012 WL 729269, at *6.
Therefore, 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 U.S. Dist. LEXIS 29404, 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.
While 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.
Defendant 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.
It 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.
The 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. The Court orders that the deposition of Erin Ostmann shall not be conducted.•
John Maley – email@example.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.