CATE v. CITY OF ROCKWOOD

Full title: JAMES CATE, Plaintiff, v. CITY OF ROCKWOOD, et al., Defendants

Court: United States District Court, E.D. Tennessee, at Knoxville

Date published: Jun 7, 2006

No. 3:02-CV-611 (E.D. Tenn. Jun. 7, 2006)

Opinion

No. 3:02-CV-611.

June 7, 2006

MEMORANDUM AND ORDER

H. GUYTON, Magistrate Judge

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 66] of the Honorable Thomas W. Phillips, United States District Judge, for disposition of Plaintiff's Motion To Take Depositions. [Doc. 64]. On May 11, 2006, this Court entered an Order denying that motion. The plaintiff filed a Motion To Reconsider [Doc. 77] and the defendants filed an objection thereto. [Doc. 79].

The plaintiff seeks leave to take the deposition of Ronald D. Higgs, M.D. in order to perpetuate his testimony for use in the event of further proceedings in this Court. [Doc. 78]. For grounds, the plaintiff argues that he needs to preserve the testimony of Dr. Higgs for trial by taking his deposition now, because "Dr. Higgs' health justifies the taking of his deposition pending appeal." In support of this argument, a cardiologist treating Dr. Higgs states that Dr. Higgs, now retired from medical practice, suffers from disabling heart disease for which he has undergone numerous procedures.

The defendants argue that the plaintiff has not shown that Dr. Higgs' condition is dire enough to justify the taking of his deposition. [Doc. 79].

Rule 27(b) of the Federal Rules of Civil Procedure allows for the taking of depositions while a case is on appeal upon a showing that there is a danger that testimony will be lost by delay. May v. International Bus. Associates, Inc., No. 85-3732, 1986 WL 16014 (6^th Cir. Apr. 17, 1986), cert. denied, 479 U.S. 834 (1986) (citing Arizona v. California, 292 U.S. 341, 347-48 (1934)).

In the opinion of the Court, the plaintiff now has made a showing that the deposition testimony of Dr. Higgs reasonably could be lost if the plaintiff is not permitted to depose him pending appeal. Accordingly, Plaintiff's Motion To Reconsider [Doc. 77] is GRANTED, and this Court's earlier Order [Doc. 70] is hereby altered and amended to GRANT IN PART the Motion to Take Depositions [Doc. 64] so as to allow the deposition of Ronald D. Higgs, M.D.

IT IS SO ORDERED.