Jacobs v. Conseco, Inc.

Full title: CHARLES C. JACOBS, JR., and ROSEMARY W. JACOBS PLAINTIFFS v. CONSECO…

Court: United States District Court, N.D. Mississippi, Delta Division

Date published: Mar 16, 2011

CIVIL ACTION NO. 2:09cv132-B-S (N.D. Miss. Mar. 16, 2011)

Opinion

CIVIL ACTION NO. 2:09cv132-B-S.

March 16, 2011

ORDER

DAVID SANDERS, Magistrate Judge

This matter is before the court on the motion of the defendants for leave to depose plaintiff Charles E. Jacobs (#152). This motion is based on a change in the plaintiff's status as a witness at trial from a "will call" to a "may call" witness. The court recognizes that this presents a hardship on the defendants, but the court does not differentiate between a discovery deposition and a trial deposition. As such, the defendants request to conduct an additional deposition of the plaintiff is not well-taken.

The court, recognizing the disadvantage to the defendants, will allow the defendants until Monday, March 21, 2011, to designate portions of Mr. Jacobs deposition taken on June 7, 2010, to be used at trial in the event that Mr. Jacobs' unavailability is established. Delgado v. City of El Campo, 68 F.3d 471 (5^th Cir. 1995) (noting a party's obligation to adequately establish that a witness is unavailable for trial).

IT IS, THEREFORE, ORDERED that the motion for leave to depose plaintiff Charles C. Jacobs (# 152) is hereby DENIED. Defendants shall have until Monday, March 21, 2011, to designate portions of Mr. Jacobs deposition to be used at trial.

SO ORDERED.