Opinion
Civil Action No. 03-3600.
October 1, 2004
MEMORANDUM AND ORDER
This case is listed for non-jury trial commencing October 18, 2004. The defendants Leslie D. Feaster and Anthony Feaster are no longer represented by counsel, and must proceed pro se. At an earlier stage, while defendants were represented by counsel, the parties took a telephone-conference deposition from one of plaintiff's witnesses, who was then in Florida. A transcript of that deposition is available for use at trial.
Plaintiff has now filed a motion for leave to take a videotape deposition of the Florida witness, asserting (1) that a videotape deposition would be preferable to simply reading the transcript of the earlier deposition, and (2) that the witness now has additional information to provide, because of events which have occurred since the earlier deposition was taken. The defendants object to the proposed further deposition.
Plaintiff has not provided information about the additional information which has allegedly come to light since the deposition was taken, but asserts merely that it bears upon the credibility of one of the defendants.
I do not believe the supposed superiority of a videotape deposition suffices as a reason for re-deposing the witness. The earlier deposition included the participation of defendants' then-lawyer, and they would presumably be at some disadvantage if, at trial, a deposition in which they were not represented would be substituted.
Insofar as the alleged further evidence is concerned, I conclude that the plaintiff should first be required to obtain an affidavit from the Florida witness, setting forth the alleged additional information. If defendants do not dispute what the witness now says, the affidavit can be offered at trial to supplement his deposition testimony. If, on the other hand, the defendants dispute the truth of the witness' affidavit, a further telephone deposition can be arranged.
As an alternative, since the case is to be tried nonjury, plaintiff may wish to re-consider the need for any additional deposition testimony, depending upon what happens at trial. If necessary, a brief recess should enable the parties to take whatever action is necessary.
In accordance with these views, plaintiff's motion will be denied without prejudice.
Plaintiff has also filed a motion to compel defendants to comply with this court's pretrial requirements, specifically, the requirement that the parties exchange witness lists and exhibit lists. In an e-mail response, the defendants seem to assert, either that they do not plan to call any witnesses other than themselves, or that the plaintiff has already been furnished a list of their witnesses. A conditional order will therefore be entered.
Finally, plaintiff seeks "extraordinary relief," asserting that the defendant Leslie Feaster has been harassing and threatening some of plaintiff's witnesses. I have reviewed the exchange of e-mails alleged to support this claim, and have concluded that, at most, this record reveals only personality clashes and emotional reactions. No corrective action is necessary.
ORDER
AND NOW, this day of October 2004, IT IS ORDERED:1. Plaintiff's motion to conduct videotape deposition for use at trial is DENIED, without prejudice, as set forth in the accompanying memorandum.
2. If they have not already done so, defendants shall promptly provide plaintiff's counsel with a list of any witnesses they intend to call at trial, together with a list of any documentary evidence or other exhibits they will offer at trial. Defendants are hereby notified that they will not be allowed to present at trial any exhibit which has not been furnished to opposing counsel at least one week before trial, and will not be permitted to call any witness (other than themselves) to testify at trial unless the witness has been identified to opposing counsel at least one week before the start of the trial.
3. Plaintiff's motion for "extraordinary relief" is DENIED.