UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 13, 2011
ANTHONY LEHR ET AL.,
CITY OF SACRAMENTO, DEFENDANT.
The opinion of the court was delivered by: Morrison C. England, JR United States District Judge
The Court is in receipt of the parties' memoranda addressing the admissibility of deposition testimony in lieu of live testimony for several witnesses who are purportedly unavailable, in accordance with Federal Rule of Civil Procedure ("FRCP") Rule 32(a)(4). (See ECF Nos. 159 and 160.)
Plaintiffs originally requested they be allowed to read portions of eight depositions into the record, as the witnesses were unable to be located. Plaintiffs presented evidence that they attempted to subpoena and locate these eight witnesses through a myriad of channels, including engaging the services of a former homeless person who has vast experience in locating homeless people throughout Sacramento.
As stated on the record, this Court is aware of the unique nature of locating persons who, by definition, lack any sort of 3 permanent residence and community ties, making the service of a 4 subpoena tremendously difficult. Therefore, the Court finds that 5 under FRCP Rule 32(a)(4) and the totality of the circumstances, the 6 efforts and methods utilized to locate those witnesses who are 7 identified as unavailable were adequate, and the following 8 witnesses are indeed unavailable: Letecia Del Toro, Jana Martinez, 9
Deborah Oliver, James Salter, and James Venzant.*fn1
However, as a result of Plaintiffs' failure to comply with the Court's Order dated May 12, 2011 (ECF No. 157), the Court cannot determine whether the witnesses' testimony via deposition comports with Federal Rule of Evidence ("FRE") Rule 403, namely that the evidence is not of a cumulative nature. In light of the above, the parties shall be prepared to address the admissibility of the evidence in question under Rule 403 on Monday, May 16, 2011 at 8:45 a.m. in Courtroom 7.
IT IS SO ORDERED.