Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service, Defendant. Defendant, John Potter, Postmaster General, by his undersigned counsel, hereby requests leave to take the video deposition of Mark Camper pursuant to F.R.C.P. 32(a)(3)(b), and to use the video deposition at trial. Undersigned counsel contacted Mr. Patterson's office on Friday, June 15, 2007 and was informed that Mr. Patterson was available on June 27, 2007. Defendant requests expedited ruling on this motion because the last business day Mr. Camper is available is June 30, 2007. Further the parties' counsel are only available on June 27, 2007. Mr. Patterson objects to the video deposition of Mr. Camper. On June 12, 2007, Defendant requested a continuance, in part, due to a material witness, Supervisor Mark Camper, being unavailable for trial. Based upon long standing plans before this trial was set, Supervisor Camper will be traveling out of the United States to Europe (Norway) from July 2, 2007 through August 22, 2007. Defendant's request for a continuance was denied. Defendant now requests leave to take direct and redirect testimony, cross examination by Mr. Patterson via video deposition of Supervisor Camper on June 27, 2007, so that the video deposition can be used at trial in lieu of Supervisor Camper's live testimony. DEFENDANT'S MOTION FOR LEAVE TO TAKE VIDEO DEPOSITION OF MARK CAMPER PURSUANT TO FRCP 32(a)(3)(b) FOR USE AT TRIAL (Request for Expedited Ruling)

Case 2:04-cv-00429-MHM

Document 136

Filed 06/19/2007

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Under Federal Rule of Civil Procedure 32(a)(3)(b), which provides that the deposition

2 of a witness, whether or not a party, may be used by any party for any purpose if the court finds 3 that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out 4 of the United States, unless it appears that the absence of the witness was procured by the party 5 offering the deposition. In this case, Supervisor Camper has vacation plans that have been 6 previously purchased for travel to Norway. Supervisor Camper's travel plans require travel 7 overseas for approximately (6) weeks. Absence of a deponent from the 100 mile area is 8 sufficient to justify admission of his deposition, and the party attempting to submit the 9 deposition into evidence need not proffer an excuse for the failure of the deponent to appear in 10 court. Houser v Snap-on Tools Corp., 202 F Supp. 181, (D.Md., 1962). A deposition of one 11 who lived within 100 miles of the place of trial, yet at the time of trial was at a distance of 12 greater than 100 miles from the place of trial, was properly introduced into evidence. Ikerd v 13 Lapworth, 435 F.2d 197, (7th Cir. 1970). 14 The testimony of Supervisor Camper is necessary and relevant to the Defendant's defense

15 of this cause of action. Supervisor Camper has personal knowledge regarding Plaintiff's 16 requests for temporary light duty, the Agency's responses to Plaintiff's requests as well as the 17 Agency's policies and practices regarding light duty and the reasons for taking the actions it did 18 regarding Plaintiff's requests. Supervisor Camper was the supervisor in charge of processing 19 light duty requests at Plaintiff's work location and was one of Plaintiff's supervisors during the 20 relevant time period contained in Plaintiff's complaint. Supervisor Camper was the front line 21 supervisor who acted as a liaison between craft employees like Plaintiff and upper management. 22 Allowing for the video deposition and admission of the video deposition at trial in lieu

23 of live testimony would not be harmful to Plaintiff. In fact, Supervisor Camper is also a named 24 witness for Plaintiff. Plaintiff will have an opportunity to cross examine Supervisor Camper 25 during the deposition, make objections which will be ruled upon by the court, and otherwise 26 question Supervisor Camper. Denial of Defendant's Motion would severely prejudice the 27 Defendant's ability to defend this cause. The requests proffered by this motion ought to be 28 2
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1 admitted because use of a deposition in the absence of a witness who is more than 100 miles 2 away at the time of trial is authorized by Rule 32(a)(3)(b). 3 WHEREFORE, Defendant respectfully requests the Court order the video deposition of

4 Supervisor Mark Camper and that it can be used at the trial. 5 6 7 8 9 10 11 12 CERTIFICATE OF SERVICE I hereby certify that on June 19, 2007, I electronically transmitted the attached Respectfully submitted this 19th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney

13 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 14 Notice of Electronic Filing to the following CM/ECF registrants: 15 Rosval A. Patterson 16 777 E. Thomas Rd. Phoenix, AZ 85014 17 18 s/S. Guerin U.S. Attorney's Office 19 20 21 22 23 24 25 26 27 28 3
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