Summary
In Munger, the court emphasized the federal government's right to hear the testimony at a deposition before trial and reasonableness of the offered deposition opportunities in deciding that a deponent who failed to attend any of the depositions would be excluded from trial.
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Civ. No. 01-1536 (JNE/JGL).
May 3, 2003.
ORDER
This matter comes before the Court on a Report and Recommendation issued by the Honorable Jonathan G. Lebedoff, Chief United States Magistrate Judge, on March 10, 2003. The Magistrate Judge recommended that the United States' motion to preclude Defendant Victoria Munger from testifying at trial be granted. Mrs. Munger filed objections to the Report and Recommendation pursuant to D. Minn. R. 72.1(c)(2).
The Court has conducted a de novo review of the record and has considered the objections raised by Mrs. Munger. Based on that review, the Court adopts the Report and Recommendation. The history of the United States' unsuccessful efforts to obtain Mrs. Munger's deposition testimony is detailed in the Report and Recommendation. In sum, Mrs. Munger failed to appear at scheduled depositions on four occasions from December 12, 2002, to February 6, 2003. On two of those occasions, Mrs. Munger's failure to appear violated a court order expressly requiring her to do so. According to Mrs. Munger's counsel, who apparently has never seen Mrs. Munger, she did not appear at the depositions because she suffers from depression and obsessive-compulsive disorder. The only evidence in the record supporting this diagnosis is an affidavit filed by Mrs. Munger's husband, Jeffrey Munger, a named defendant in this case who is neither a psychologist nor a psychiatrist. The record does not contain any evidence substantiating the claims made by Mr. Munger in his affidavit, and does not contain any evidence that would otherwise excuse Mrs. Munger's failure to cooperate with the discovery process. Accordingly, Mrs. Munger will not be permitted to testify at trial. Therefore, IT IS ORDERED THAT:
1. Plaintiff's Motion for Order Precluding Testimony for Victoria Munger's Failure to Appear at Her Deposition [Docket No. 52] is GRANTED.