Opinion
CV418-099
02-03-2022
JEMME J. JENKINS, Individually, and JULIANNE GLISSON, Administrator of the Estate of Jimmie L. Alexander, Sr., Plaintiffs, v. CORIZON HEALTH INC., a Delaware Corporation; GUY AUGUSTIN, M.D.; VICTORIA NEILSER, LPN; and MARK DAMBACH, LPN; Defendants.
ORDER
WILLIAM T. MOORE, J.R. UNITED STATES DISTRICT COURT
Before the Court is Plaintiffs' Motion to Read Corporate Representative Depositions at Trial. (Doc. 288.) In their motion, Plaintiffs ask the Court to allow the depositions of Ronald Tyran, Rebecca Pinney, Virginia O'Neill, and Jane Lachner to be read at trial pursuant to Federal Rule of Civil Procedure 32(a)(3). (Id. at 1-3.) Defendants oppose the use of Ms. O'Neill's deposition at trial and ask the Court to limit the use of Ms. Pinney's testimony to topics she was designated to speak about on behalf of Corzion Health, Inc. (Doc. 312 at 2.) For the following reasons, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.
Defendants also oppose Plaintiffs' subpoena of Ms. O'Neill. (Doc. 312 at 2, 4.) Defendants' argument on this issue is unrelated to whether Plaintiffs may read these witnesses' depositions at trial, which is the only relief requested in Plaintiffs' motion. If Defendants desire to have the Court quash a subpoena, they must explicitly request such action through an appropriate motion. Fed.R.Civ.P. 45(d)(3) (explaining circumstances in which a court may quash or modify a subpoena "[o]n a timely motion"). 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
ANALYSIS
Federal Rule of Civil Procedure 32(a)(1) permits the use of depositions against a party at trial if:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).Fed. R. Civ. P. 32(a)(1). Relevant to this motion, Rule 32(a)(3) provides:
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. 32(a)(3) (emphasis added). Courts in this circuit have held that Rule 32(a) (3) permits use of a corporate designee's deposition testimony "regardless of the adversary's availability to testify at trial." Mt. Hawley Ins. Co. v. Tactic Sec. Enf't, Inc., No. 6:16-cv-1425-Orl-40TBS, 2018 WL 10690250, at *1 (M.D. Fla. Apr. 5, 2018) (emphasis omitted) (quoting Coughlin v. Capitol Cement Co., 571 F.2d 290, 308 (5th Cir. 1978)); see also In re 3M Combat Arms Earplug Prods. Liab. Litig., 338 F.R.D. 167, 170 (N.D. Fla. 2021). However, Rule 32(a)(3) does not apply to non-party deponents. In re 3M, 338 F.R.D. at 170 ("[I]f the Deponent is a non-party, he must be unavailable in order for the deposition to be used for any purpose other than for impeachment or another purpose allowed by the Federal Rules of Evidence." (citing Fed.R.Civ.P. 32(a)(4))). The Court will now consider Rule 32(a) (3)'s applicability to each of the depositions that Plaintiffs seek to use at trial.
The two cases that Defendants cite stand for unrelated propositions. (Doc. 312 at 4.) In Dopson-Troutt v. Novartis Pharm. Corp., 295 F.R.D. 536 (M.D. Fla. 2013), a district court held that Rule 30(b)(6), by itself, does not permit subpoenaing a witness for trial. Id. at 539-40. In Jiminez-Carillo v. Autopart Int'l, Inc., 285 F.R.D. 668 (S.D. Fla. 2012), the district court found that a corporate defendant was not required to produce officers for depositions who lacked relevant personal knowledge and would not be called to testify at trial. Id. at 670. However, neither Dopson-Troutt nor Jiminez-Carillo addresses using a Rule 30(b)(6) deposition at trial pursuant to Rule 32(a)(3).
I. RONALD TYRAN
As an initial matter, Rule 32(a)(3) has no application to the use of Ronald Tyran's deposition at trial. Plaintiffs contend that they should be allowed to use Mr. Tyran's deposition because he was the Rule 30(b) (6) designee for the Sheriff's Office. (Doc. 288 at 1.) The Court notes that Mr. Tyran was actually the Rule 30(b) (6) designee for Chatham County. (Doc. 49 at 2.) In any event, Plaintiffs' claims against both Chatham County and Sheriff's Office employees have been resolved either through summary judgment or settlement. (Docs. 233, 239, 343.) Therefore, the Court finds Plaintiffs and Chatham County are no longer "adverse" parties within the meaning of Rule 32(a)(3). See Powertrain, Inc. v. Ma, 88 F.Supp.3d 679, 691 (N.D. Miss. 2015) (finding deposition testimony not admissible because designating party "was dismissed on default judgment earlier in this proceeding and thus was not a party to this action at the time of trial"), affd, 640 Fed.Appx. 263 (5th Cir. 2016) (per curiam); Est, of Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 311-12 (N.D. Iowa 2013) (plaintiffs could not use witness's deposition under "Rule 32(a) (3) [] because they, as the offering parties, [were] not 'adverse' to Ohlins, where Ohlins [had] been dismissed") . Accordingly, Plaintiffs' motion (Doc. 288) is DENIED IN PART to the extent they seek to use Mr. Tyran's deposition for any purpose pursuant to Rule 32(a)(3).
II. JANE LACHNER
Likewise, the Court finds Jane Lachner's deposition falls outside the scope of Rule 32(a) (3) . Although Plaintiffs claim that Ms. Lachner is a Rule 30(b)(6) designee of Corizon Health, Inc. (Doc. 288 at 2), the record suggests otherwise. Ms. Lachner's deposition transcript refers to her as a "Non-Party Witness[.]" (Doc. 93 at 1.) Furthermore, Corizon Health's June 22, 2018, communication to Plaintiffs identifies only Rebecca Pinney and Virginia O'Neill as its Rule 30(b)(6) designees. (Doc. 312, Attach. 2 at 7.) Lacking any evidence to the contrary, the Court must conclude that Ms. Lachner is not a Rule 30(b)(6) designee. As a result, Plaintiffs' motion (Doc. 288) is DENIED IN PART to the extent they seek to use Ms. Lachner's deposition for any purpose pursuant to Rule 32(a)(3).
III. REBECCA PINNEY AND VIRGINIA O'NEILL