United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE
DEFENDANT'S DESIGNATION OF DEPOSITION TESTIMONY OF CAROL
HALLETT Re: Dkt. No. 409
HAYWOOD S. GILLIAM, JR. United States District Judge
motion involves what the Court assumes to be a rare, and
somewhat astonishing, set of facts.
in this matter began on May 30, 2017. Dkt. No 375. Without
dispute, counsel for defendant VMware repeatedly represented
to opposing counsel that it planned to call former Phoenix
employee Carol Hallett to testify in defendant's
case-in-chief. See Dkt Nos. 409-2, 409-3, 409-4,
409-5. It is undisputed that Ms. Hallett resides more than
100 miles away from the courthouse where the trial is taking
place. See Dkt. No. 409 at 2 (citing Hallett Tr. At
5:14). On Sunday, June 4, 2017, Ms. Hallett “was in
Oakland at [defense counsel's] request to discuss
possibly testifying in this trial and [so that defense
counsel could] prepare her to testify.” Dkt. No. 416
¶ 2. In fact, Ms. Hallett was staying at the Oakland
Marriott City Center, located two blocks from this
courthouse. At 5:22 p.m. on June 4, 2017, defense counsel
advised plaintiff's counsel that Ms. Hallett would be
their first witness. See Dkt. No. 409-4. However, at
3:30 p.m. on Monday, June 5, 2017, defendant disclosed for
the first time that it no longer planned to call Ms. Hallett
as a live witness, and would instead seek to introduce her
videotaped deposition testimony. See Dkt. No. 409-5.
It turns out that Ms. Hallett had checked out of her room at
the Marriott at 8:49 a.m. that morning, after the start of
the trial day, and returned to her home. See Dkt.
Nos. 409-1 ¶ 2, 414 at 1013:22-23. Defendant now seeks
to admit excerpts of Ms. Hallett's deposition testimony
in its case-in-chief on June 7, 2017, in lieu of live
Court thus confronts the following question: is a witness who
resides more than 100 miles from the courthouse, and is at
her residence when counsel seeks to proffer her deposition
testimony, “unavailable” under Federal Rule of
Civil Procedure 32(a)(4)(B), even when the witness was two
blocks away from the courthouse and actively meeting with
defense counsel to prepare for potential live testimony up
until two days before her testimony is proffered? The Court
views the facts here as, at a minimum, inconsistent with the
spirit of the unavailability rule, and with the longstanding
presumption that live testimony is clearly preferable to
deposition testimony, especially for important witnesses like
Ms. Hallett. See Wilson v. Walgreen Co., No.
C-11-2930 EMC, 2011 WL 4345079, at *4 (N.D. Cal. Sept. 14,
2011) (stating that “for trial, live testimony is as a
general matter preferable over deposition excerpts.”).
Reluctantly, however, the Court concludes that the plain
language of Rule 32 and controlling precedent establish that
Ms. Hallett is technically unavailable at the time the
deposition is being offered, authorizing defendant's use
of her deposition.
32(a)(4)(B) provides that “a party may use for any
purpose the deposition of a witness, whether or not a party,
if the court finds . . . that the witness is more than 100
miles from the place of hearing or trial or is outside the
United States, unless it appears that the witness's
absence was procured by the party offering the
deposition.” Fed.R.Civ.P. 32(a)(4(B). There is no
dispute that Ms. Hallett lives more than 100 miles from the
courthouse. Instead, the question is whether, having
persuaded Ms. Hallett to come within a two-block radius of
the courthouse to prepare for potential testimony, defendant
can nonetheless establish her unavailability as of today
because she chose to return home after defense counsel said
she would not be called. See Dkt. No. 416 ¶ 2.
Perhaps unsurprisingly, neither the Court nor the parties
have identified a case involving this precise scenario.
However, in Hangarter v. Provident Life and Acc. Ins.
Co., 373 F.3d 998, 1019 (9th Cir. 2004), a case
involving a trial in the Northern District of California, the
Ninth Circuit found that a witness' “residence in
Alabama placed him outside of the court's subpoena power
under [Rule] 45, and he was thus unavailable pursuant to
[Rule] 32(a)(3), which permits deposition testimony where
‘the witness is at a greater distance than 100 miles
from the place of the trial or hearing.'” While
Hangarter obviously did not involve the unusual fact
pattern present in this case, nothing in that case or the
text of Rule 32 requires (or permits) the Court to consider
whether a witness was within the 100-mile radius at any time
other than the moment when the witness' deposition
testimony is proffered. As of today, Ms. Hallett presumably
is still at her home 130 miles away. See Dkt. No.
414 at 1013:22-23. This compels the conclusion that defendant
may use her deposition testimony “unless it appears
that the witness's absence was procured by the party
offering the deposition.” Fed.R.Civ.P. 32(a)(4)(B).
Court finds that the record does not establish that VMware
“procured” Ms. Hallett's absence. According
to sworn representations by VMware's counsel, Ms. Hallett
was told on Monday, June 5, 2017 that she would not be called
to testify, and that she “could enjoy her [hotel] room
or she could leave.” Dkt. No. 416 ¶ 2.
VMware's counsel “did not tell Ms. Hallett to leave
Oakland, to avoid the courthouse, or suggest that she should
not speak to or communicate with Phoenix or its
counsel.” Id. ¶ 3. Thus, contrary to
Phoenix's claims, VMware did not procure Ms.
Hallett's absence by persuading her to voluntarily come
to Oakland, then advising her that she was free to return
home once the decision was made not to call her. See
Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st
Cir. 1988) (noting that “[u]nder the case law
interpreting Rule 32 . . . procuring absence and doing
nothing to facilitate presence are quite different
things.”); cf. Garcia-Martinez v. City & County
of Denver, 392 F.3d 1187 (10th Cir. 2004) (party
procured his own absence at trial by voluntarily leaving the
categorically asserts that finding unavailability under these
circumstances “would constitute reversible error in the
Ninth Circuit, ” Dkt. No. 409 at 1, but cites no Ninth
Circuit authority other than Forbes v. Cnty. of
Orange, 633 Fed. App'x 417 (9th Cir. 2016), an
unpublished, non-precedential memorandum disposition. Even if
it were controlling precedent, Forbes is plainly
distinguishable: that case involved a different subsection of
Rule 32-section (a)(4)(D)-that is separate from the 100-mile
provision at issue here, and the rule makes clear that a
party may offer deposition testimony if any one of
the conditions set out in sections (A) through (E) is met.
Id. at 418; see also Fed. R. Civ. P.
32(a)(4)(A)-(E) (listing five alternatives in the
disjunctive, as reflected by the “or” between (D)
and (E)). And the Forbes court simply found that the
district court did not abuse its discretion in finding that
the witness was not unavailable under Rule 32(a)(4)(D) or
should be clear from the above discussion, the Court is not
enthusiastic about ratifying Defendant's plainly
intentional tactical decision to deprive the jury of live
direct and cross-examination of a key witness. The Court does
not disagree with Phoenix's characterization of the
course of events here as “distasteful, ” and the
drafters of the Federal Rules might have been tempted to
write Rule 32 differently had they considered the prospect of
what occurred here. Nonetheless, on the undisputed facts
presented, the Court is constrained by the plain language of
Rule 32 and controlling Ninth Circuit authority to conclude
that Ms. Hallett is unavailable. Accordingly, plaintiffs
motion to exclude her videotaped deposition excerpts is
 Plaintiff's case-in-chief was
ongoing on June 5.
 The Court also finds Plaintiffs other
proffered out-of-circuit cases unpersuasive. United
States v. Turner, 561 Fed. App'x. 312, 321 (5th Cir.
2014), considered unavailability in the context of Rules
804(b)(1) and 807(a)(2), neither of which is at issue here,
rather than under Rule 32. And in the Court's view,
VIIV Healthcare Co. v. Mylan, Inc., No.
12-cv-1065-RGA, 2014 WL 2195082, at *1 (D. Del. May 23, 2014)
inappropriately imported subsection (a)(4)(D)'s implicit
obligation “to use reasonable diligence to secure [a]
witness's presence” into subsection (a)(4)(B).
Indeed, Thomas v. Cook Cnty. Sheriff's Dept, ...