Forrester v . Wheelabrator CV-10-154-JL 4/6/12
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Forrester Environmental
Services, Inc. and Keith E .
Forrester
v. Civil N o . 10-cv-154-JL
Opinion N o . 2012 DNH 068
Wheelabrator Technologies, Inc.
MEMORANDUM ORDER
In this hotly-litigated commercial dispute, Keith Forrester
and his company, Forrester Environmental Services, Inc. (“FESI”),
have sued his former employer, Wheelabrator Technologies, Inc.
They allege that Wheelabrator falsely told a mutual customer,
Taiwanese waste treatment company Kobin Environmental Enterprise
Co., Ltd., that Wheelabrator owned the U.S. patent rights to
FESI’s intellectual property, among other things, and that this
caused Kobin to stop doing business with FESI. Forrester and
FESI assert claims for (1) unfair and deceptive trade practices
in violation of the Consumer Protection Act, N.H. Rev. Stat. Ann.
§ 358-A, (2) tortious interference with contractual relationship,
and (3) tortious interference with prospective advantage.1 This
1
Plaintiffs also asserted a fourth claim for trade secret
misappropriation in violation of the Uniform Trade Secrets Act,
N.H. Rev. Stat. Ann. § 350-B. The court granted summary judgment
to Wheelabrator on that claim, as plaintiffs proffered no
evidence that Wheelabrator “misappropriated” their trade secrets
within the meaning of that statute. Forrester Envtl. Servs.,
Inc. v . Wheelabrator Techs., Inc.,
2011 DNH 2 1 2 , 29-35.
court has jurisdiction under
28 U.S.C. §§ 1331 (federal question)
and 1338 (patent) because the plaintiffs’ right to relief
necessarily depends on resolution of substantial questions of
federal patent law.
Wheelabrator previously moved for summary judgment, arguing
that plaintiffs’ claims are barred, in whole or in part, by the
three-year statute of limitations set forth in N.H. Rev. Stat.
Ann. § 508:4, I . The court rejected that argument and denied
Wheelabrator’s motion, concluding that a genuine issue of
material fact existed as to when plaintiffs first discovered (or
should have discovered) Wheelabrator’s alleged misconduct, the
event that started the running of the limitations period under
the so-called “discovery rule.” Forrester,
2011 DNH 2 1 2 , 22-26.
Because the New Hampshire Supreme Court has held that application
of the discovery rule is a question of fact to be decided by the
court, see Keshishian v . CMC Radiologists,
142 N.H. 1 6 8 , 179-80
(1997), the court scheduled a pre-trial evidentiary hearing to
promote the swift resolution of this issue.
In advance of the hearing, plaintiffs submitted a witness
list indicating that they intend to offer the deposition
testimony of Haun-Chung “Dennis” Chao, a resident of Taiwan and
former Kobin employee, in lieu of live testimony at the hearing.
Wheelabrator has moved in limine to exclude Chao’s videotaped
2
deposition testimony at both the hearing and, if plaintiffs’
claims survive that hearing, trial. See L.R. 16.2(b)(3).
Wheelabrator raises several arguments in support of its motion.
First, it argues that Chao is plaintiffs’ agent, and that, if
plaintiffs wish to offer his testimony, they should be compelled
to produce him in person rather than using videotaped testimony.
Wheelabrator further argues that Chao’s credibility is at issue,
making his personal attendance desirable; that it did not have a
full and fair opportunity to prepare for that deposition; and
that his videotaped deposition, which was his second deposition
in this action, was taken without obtaining leave of court
pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii).
For the reasons fully explained below, of these various
objections to using Chao’s deposition testimony at the hearing or
trial, the final argument is the only meritorious one. Because,
however, that argument does not require exclusion of the
testimony under the present circumstances, Wheelabrator’s motion
is denied.
I. Chao’s status as plaintiffs’ agent
Wheelabrator first argues that Chao--who, it claims, was
paid for his testimony (or, at the very least, is plaintiffs’
employee)--is required to appear in person because he is
3
plaintiffs’ agent. This argument finds no support in the Federal
Rules of Civil Procedure, and is easily rejected.
Rule 32(a)(4) 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 unavailable]” (emphasis
added). The rule therefore allows the use of an unavailable
witness’s deposition testimony in lieu of live testimony even if
that witness is a party. It follows that the rule also covers
the depositions of agents and employees of parties. There is no
real dispute that Chao is not available within the meaning of the
rule, as he lives in Taiwan. See id. 32(a)(4)(B) (witness is
unavailable if he or she “is outside the United States, unless it
appears that the witness’s absence was procured by the party
offering the deposition”). Thus, even assuming Chao is
plaintiffs’ agent (a fact plaintiffs contest), that does not
affect the admissibility of his deposition testimony at the
upcoming evidentiary hearing and trial.
It may be that Wheelabrator is arguing that Chao is not
truly “unavailable” within the meaning of the rule because
plaintiffs procured his absence. See id. That argument, though,
is also unsupported. As our court of appeals has explained, a
conclusion that a party has procured the absence of a witness
requires a finding that the party “actively took steps to keep
4
the deponents from setting foot in the courtroom,” and “procuring
absence and doing nothing to facilitate presence are quite
different things.” Carey v . Bahama Cruise Lines, 864 F.2d 2 0 1 ,
204 (1st Cir. 1988). The facts in Carey are instructive. There,
the defendant cruise line sought to use the deposition testimony
of its own employees, crewmen aboard one of its ships who were at
sea at the time of trial.
Id. Although the deponents were the
defendant’s employees (and the defendant presumably could have
kept them on shore rather than sending them to s e a ) , the court of
appeals held that it was not error to admit their deposition
testimony because there was no evidence that the defendant had
taken any steps to keep them out of court.
Id.
Here, as there, there is no evidence that plaintiffs
“actively took steps” to make Chao unavailable; Wheelabrator does
not suggest that plaintiffs are responsible for Chao’s residence
in Taiwan (nor could it credibly do s o ) . At worst, plaintiffs
have simply done nothing to facilitate his presence in court.
Accordingly, there is no basis for excluding his deposition
testimony under Rule 32(a).
II. The need to test Chao’s credibility
Wheelabrator’s next argument, that plaintiffs should not be
permitted to offer Chao’s deposition testimony because his
5
credibility is at issue, also fails. That argument appears to be
premised on the theory that Chao’s physical presence is required
to enable the factfinder’s credibility assessment. It is no
doubt true that the ability to observe a witness’s body language
and to hear the inflection and emphasis given in spoken testimony
may aid a factfinder in evaluating both the credibility of the
witness and the proper interpretation of ambiguous testimony.
See, e.g., Aubrey Rogers Agency, Inc. v . AIG Life Ins. Co., N o .
97-CV-529 MMS, 2000 WL 135129, *4 (D. Del. Jan. 1 3 , 2000)
(discussing “the importance for the jury to see and observe [the
witness’s] testimony and cross-examination on the issues to
determine [his] credibility and reliability”); In re Air Crash
Disaster at Stapleton Int’l Airport,
720 F. Supp. 1493, 1502 (D.
Colo. 1989) (“[B]ecause the deposition testimony appeared subject
to various interpretations the need for the jury to observe the
demeanor of the witness to determine credibility was
substantial.”). Live testimony therefore presents a clear
advantage over the recitation of deposition testimony from a
transcript. Where a deposition has been videotaped, however, and
it is the video recording of the deposition that is offered--as
is the case here--any advantage to live testimony is diminished,
as the finder of fact will still have the opportunity to observe
the witness’s body language and to hear the spoken testimony.
6
Cf. Carey, 864 F.2d at 204 (“To the extent [plaintiffs] believed
it was critical to capture the demeanor and appearance of the
witnesses for the jury, they could have videotaped the
depositions.”). Any gain to be had from requiring Chao’s live
testimony in lieu of his deposition testimony does not, under the
circumstances of this case, provide a basis for excluding his
videotaped deposition.
III. Wheelabrator’s opportunity to examine Chao
Wheelabrator next contends that it did not have a reasonable
opportunity to examine Chao at his videotaped deposition.
Because the videotaped deposition took place two days after
Chao’s “discovery deposition,” Wheelabrator argues, it did not
have “the benefit of the transcript of the discovery deposition
that would normally be used as a tool for cross-examination and
impeachment.” This argument is deceiving in its simplicity. At
the videotaped deposition, Wheelabrator was in no worse a
position than any other party at a deposition who is later faced
with the potential introduction of testimony from that
deposition, and in fact was in a much better position.
At most depositions, the parties examining the witness do
not have the benefit of the witness’ prior sworn testimony from
the same case for impeachment or cross-examination. In many
7
cases, the parties do not know at the deposition that the witness
will not be available for trial. Rule 32 nonetheless allows the
introduction of deposition testimony at a subsequent trial or
hearing without regard to either of these concerns. At Chao’s
videotaped deposition, Wheelabrator not only knew that he would
likely be unavailable for trial–-plaintiffs told it as much four
months earlier-–it had heard his testimony at his prior
deposition two days before, and had a full day between the two
depositions to develop a strategy for examining him.2
Wheelabrator was therefore better-informed and more prepared at
Chao’s videotaped deposition than parties in the vast majority of
cases. The court will not exclude his testimony solely because
Wheelabrator did not have a written transcript of his prior
testimony at the time of his second deposition.
IV. Plaintiffs’ failure to obtain leave of court
Wheelabrator’s final argument is that Chao’s videotaped
deposition testimony should be excluded from trial because the
2
The court also notes that many court reporting services
offer overnight transcription of deposition testimony for a fee.
This is not meant to suggest that Wheelabrator should have
obtained an overnight transcript of Chao’s testimony, but if
Wheelabrator truly believed a transcript was necessary for the
second deposition, that option was available to i t . Given the
resources already expended in this case, the extra expense that
would have entailed would not have been extraordinary.
8
deposition, Chao’s second of the case, was taken without leave of
the court. As already noted, this argument has some merit.
Federal Rule of Civil Procedure 30(a)(2)(A)(ii) provides that
“[a] party must obtain leave of court” to take a deposition “if
the parties have not stipulated to the deposition and . . . the
deponent has already been deposed in the case.” It is undisputed
that Wheelabrator did not stipulate to Chao’s second deposition
(indeed, it vehemently objected to the second deposition) and
that plaintiffs failed to obtain leave of court before taking i t .
The only question is whether exclusion of the deposition is an
appropriate remedy for this failure.
Exclusion is not warranted here. That relief is not
mandatory for a violation of Rule 30(a). See Kendrick v .
Schnorbus, 655 F.2d 7 2 7 , 729 (6th Cir. 1981) (“[W]e do not
believe Rule 30(a), when read in conjunction with Rule 3 2 ,
creates a per se rule of suppression when a technical violation
of Rule 30(a) occurs.”); United States v . Atlas Lederer Co.,
282
F. Supp. 2d 6 8 7 , 696 (S.D. Ohio 2001) (declining to preclude
reliance on second deposition at summary judgment where parties
failed to obtain leave of court to depose witness a second
time). 3 Wheelabrator has articulated no prejudice as a result of
3
Rule 32(a)(5)(B) is the only provision of the Federal Rules
that affirmatively requires exclusion of a deposition taken
without leave of court; it provides that “[a] deposition taken
9
plaintiffs’ failure to obtain leave before conducting the
videotaped deposition. C f . Kendrick, 655 F.2d at 729 (“Absent
any showing of any real injury because of the failure to obtain
leave, we do not believe the trial judge abused his discretion in
failing to suppress.”); Atlas Lederer,
282 F. Supp. 2d at 696
(court would not preclude reliance on deposition testimony
“[a]bsent any articulated prejudice . . . as a result of
[defendant’s] failure to obtain leave”). Wheelabrator was
represented by counsel at the deposition, and afforded the
opportunity to cross-examine Chao. If the court were to exclude
Chao’s videotaped testimony, the parties would still be entitled
to use his testimony from the first deposition at both the
upcoming evidentiary hearing and trial. The use of Chao’s
videotaped testimony is preferable to the use of his prior
deposition testimony for reasons already mentioned, including
that (1) the finder of fact will be able to observe Chao’s
demeanor in the videotape when assessing his credibility and (2)
Wheelabrator was better prepared at the second deposition.
without leave of court under the unavailability provision of Rule
30(a)(2)(A)(iii) must not be used against a party who shows that,
when served with the notice, it could not, despite diligent
efforts, obtain an attorney to represent it at the deposition.”
The Rules contain no such mandatory exclusion for depositions
taken without obtaining leave of court under other provisions of
Rule 30(a)(2), such as Chao’s second deposition.
10
While the court will not exclude Chao’s videotaped
deposition testimony, this conclusion does not foreclose
Wheelabrator from seeking other relief as a result of plaintiffs’
failure to obtain leave of court before proceeding with his
second deposition.
V. Conclusion
For the reasons set forth above, Wheelabrator’s motion to
preclude plaintiffs’ use of Dennis Chao’s videotaped deposition
testimony4 is DENIED.
SO ORDERED.
0C J^(ff6£C£>
Joseph N.'Laplante
United States District Judge
Dated: April 6, 2012
cc: Erik Graham Moskowitz, Esq.
Michael J. Markoff, Esq.
Sibley P. Reppert, Esq.
Steven E . Grill, Esq.
Jonathan M . Shirley, Esq.
4
Document n o . 172.
11
