United States District Court, D. Connecticut
RMH TECH LLC, a Colorado limited liability company, and METAL ROOF INNOVATIONS, LTD., a Colorado corporation, Plaintiffs,
PMC INDUSTRIES, INC., a Connecticut corporation, Defendants.
ORDER ON TESTIMONY OF CAROLL MARSTON
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Tech LLC and Metal Roof Innovations, Ltd.
(“Plaintiffs” or “RMH and MRI”) have
sued PMC Industries, Inc. (“Defendant” or
“PMC”), alleging patent infringement. PMC asserts
two counterclaims seeking a declaratory judgment of
non-infringement or invalidity.
supplemental joint pretrial memorandum, RMH and MRI seek
permission to offer the videotaped deposition testimony of
Caroll Marston at trial, as Mr. Marston “is no longer
subject to the jurisdiction of the Court and therefore cannot
be subpoenaed.” Supplemental Joint Trial Memorandum,
dated Oct. 9, 2018 (“Supp. Mem.”), ECF No. 173,
at 2. PMC objects, arguing that his testimony is no longer
relevant to the case. Id. at 2-3. In addition to
setting out their views in the supplemental joint trial
memorandum, the parties' discussed this dispute at length
in a final pretrial conference with the Court on October 11,
2018. Minute Entry, dated Oct. 11, 2018, ECF No. 175.
Marston is purportedly unavailable within the meaning of Rule
804 of the Federal Rules of Evidence and Federal Rule of
Civil Procedure 32. See Fed. R. Evid. 804(a)(5)(A)
(“A declarant is considered to be unavailable as a
witness if the declarant . . . (5) is absent from the trial
or hearing and the statement's proponent has not been
able, by process or other reasonable means, to procure: (A)
the declarant's attendance, in the case of a hearsay
exception under Rule 804(b)(1) or (6) . . . .”);
Fed.R.Civ.P. 32(a)(4) (“A party may use for any purpose
the deposition of a witness, whether or not a party, if the
court finds . . . (B) 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 . . . [or] (D)
that the party offering the deposition could not procure the
witness's attendance by subpoena . . . .”).
his testimony had previously been secured by deposition, as
the Court understands it, PMC made Mr. Marston available
under Federal Rules of Civil Procedure Rule 30(b)(6) on a
limited basis. See Fed. R. Civ. P. 30(b)(6)
(permitting subpoena of organization and requiring that named
organization to designate “one or more officers,
directors, or managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the
matters on which each person designated will
testify.”). PMC thus objects to the use of any
testimony beyond the scope of the designated areas of
pretrial conference, RMH and MRI proposed an alternative way
to procure Mr. Marston's testimony: that they be given
leave to conduct an additional deposition of Mr. Marston
before the trial. See Fed. R. Civ. P.
30(a)(2)(A)(ii) (“A party must obtain leave of court,
and the court must grant leave to the extent consistent with
Rule 26(b)(1) and (2): (A) if the parties have not stipulated
to the deposition and . . . (ii) the deponent has already
been deposed in the case . . . .”).
otherwise limited by court order . . . Parties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
all these factors, the Court agrees that an additional
deposition of Mr. Marston would be appropriate here. In
particular, the Court notes that Mr. Marston was, until the
eve of the filing of the joint trial memorandum, expected to
be available as a fact witness at trial. See Supp.
Mem. at 2. The Court further notes that the scope of the
proposed deposition is limited, as RMH and MRI asserted at
the pretrial conference that they have about fifteen specific
factual questions for Mr. Marston regarding emails that he
sent and/or received, and that Mr. Marston was directly
involved in the development of the accused infringing
product. The Court therefore finds that the burden or expense
that may be incurred in noticing and holding a deposition in
the days leading up to trial is outweighed by the importance
of Mr. Marston's testimony in resolving issues at stake
in this litigation, and that permitting this discovery is
thus relevant and proportional to the needs of the case.
extent that PMC argues that any use of Mr. Marston's
30(b)(6) deposition testimony would be improper, the Court
exercises its inherent authority to ensure the expeditious
resolution of this case, Dietz v. Bouldin, 136 S.Ct.
1885, 1889 (2016), and grants RMH and MRI leave to take Mr.
Marston's deposition before the upcoming trial.