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Franklin v. Sacramento Area Flood Control Agency

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 22, 2009

MAGGIE FRANKLIN, PLAINTIFF,
v.
SACRAMENTO AREA FLOOD CONTROL AGENCY, A PUBLIC ENTITY, CITY OF SACRAMENTO, A PUBLIC AGENCY, DEFENDANTS.

JOINT STIPULATION AND [PROPOSED] ORDER TO USE THE SECOND DEPOSITION OF GARY NIBBELINK AT TRIAL IN LIEU OF LIVE TESTIMONY UNDER FRCP 32 Final Pretrial Conference: Sept. 8, 2009 Trial: October 6, 2009

Plaintiff MAGGIE FRANKLIN and Defendants SACRAMENTO AREA FLOOD CONTROL AGENCY, and the CITY OF SACRAMENTO, by and through their respective attorneys of record, hereby stipulate that Defendants may use the videotaped deposition of Gary Nibbelink, Defendants' Vocational Rehabilitation Expert, during trial in lieu of live testimony.

The parties make this request because Mr. Nibbelink will be unavailable to testify when Defendants expect to call him during trial. From October 8 to October 20, 2009, Mr. Nibbelink will be on a prepaid vacation in Idaho. Mr. Nibbelink's unavailability is due to the fact that trial was continued at the request of Plaintiff's counsel from May 27, 2009 to October 6, 2009. Federal Rule of Civil Procedure 32 allows a deposition to be used at trial if the witness "is more than 100 miles from the place of. trial." Fed. R. Civ. Proc. 32(a)(4)(B). At the time his deposition testimony will be offered, Mr. Nibbelink will be in Idaho, more than 100 miles from Sacramento.

Both parties agree that Mr. Nibbelink's deposition will be videotaped for the purpose of being used at trial in lieu of live testimony. The parties will coordinate an acceptable time and place for the videotaped deposition. Defendants will examine Mr. Nibbelink and Plaintiff will be provided full opportunity to cross-examine Mr. Nibbelink. Mr. Nibbelink's videotaped deposition will be used in lieu of live testimony even if Mr. Nibbelink becomes available for trial. In the circumstance that trial is continued from October 6, 2009 to a later date, the parties agree to use the videotaped deposition of Mr. Nibbelink in lieu of live testimony, but only if Mr. Nibbelink's videotaped deposition is taken before trial is continued.

Since Mr. Nibbelink will be more than 100 miles from Sacramento and as both parties have stipulated for the use of Mr. Nibbelink's deposition at trial, the parties respectfully request the Court approve this stipulation and allow the use of Mr. Nibbelink's second deposition at trial.

IT IS SO ORDERED.

20090722

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