The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
In this hotly-litigated commercial dispute, Keith Forrester and his company, Forrester Environmental Services, Inc. ("FESI"), have sued his former employer, Wheelabrator Technologies, Inc. They allege that Wheelabrator falsely told a mutual customer, Taiwanese waste treatment company Kobin Environmental Enterprise Co., Ltd., that Wheelabrator owned the U.S. patent rights to FESI's intellectual property, among other things, and that this caused Kobin to stop doing business with FESI. Forrester and FESI assert claims for (1) unfair and deceptive trade practices in violation of the Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A, (2) tortious interference with contractual relationship, and (3) tortious interference with prospective advantage.*fn1 This court has jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1338 (patent) because the plaintiffs' right to relief necessarily depends on resolution of substantial questions of federal patent law.
Wheelabrator previously moved for summary judgment, arguing that plaintiffs' claims are barred, in whole or in part, by the three-year statute of limitations set forth in N.H. Rev. Stat. Ann. § 508:4, I. The court rejected that argument and denied Wheelabrator's motion, concluding that a genuine issue of material fact existed as to when plaintiffs first discovered (or should have discovered) Wheelabrator's alleged misconduct, the event that started the running of the limitations period under the so-called "discovery rule." Forrester, 2011 DNH 212, 22-26. Because the New Hampshire Supreme Court has held that application of the discovery rule is a question of fact to be decided by the court, see Keshishian v. CMC Radiologists, 142 N.H. 168, 179-80 (1997), the court scheduled a pre-trial evidentiary hearing to promote the swift resolution of this issue.
In advance of the hearing, plaintiffs submitted a witness list indicating that they intend to offer the deposition testimony of Haun-Chung "Dennis" Chao, a resident of Taiwan and former Kobin employee, in lieu of live testimony at the hearing. Wheelabrator has moved in limine to exclude Chao's videotaped deposition testimony at both the hearing and, if plaintiffs' claims survive that hearing, trial. See L.R. 16.2(b)(3). Wheelabrator raises several arguments in support of its motion. First, it argues that Chao is plaintiffs' agent, and that, if plaintiffs wish to offer his testimony, they should be compelled to produce him in person rather than using videotaped testimony. Wheelabrator further argues that Chao's credibility is at issue, making his personal attendance desirable; that it did not have a full and fair opportunity to prepare for that deposition; and that his videotaped deposition, which was his second deposition in this action, was taken without obtaining leave of court pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii).
For the reasons fully explained below, of these various objections to using Chao's deposition testimony at the hearing or trial, the final argument is the only meritorious one. Because, however, that argument does not require exclusion of the testimony under the present circumstances, Wheelabrator's motion is denied.
I. Chao's status as plaintiffs' agent
Wheelabrator first argues that Chao--who, it claims, was paid for his testimony (or, at the very least, is plaintiffs' employee)--is required to appear in person because he is plaintiffs' agent. This argument finds no support in the Federal Rules of Civil Procedure, and is easily rejected.
Rule 32(a)(4) provides that "[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds [that the witness is unavailable]" (emphasis added). The rule therefore allows the use of an unavailable witness's deposition testimony in lieu of live testimony even if that witness is a party. It follows that the rule also covers the depositions of agents and employees of parties. There is no real dispute that Chao is not available within the meaning of the rule, as he lives in Taiwan. See id. 32(a)(4)(B) (witness is unavailable if he or she "is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition"). Thus, even assuming Chao is plaintiffs' agent (a fact plaintiffs contest), that does not affect the admissibility of his deposition testimony at the upcoming evidentiary hearing and trial.
It may be that Wheelabrator is arguing that Chao is not truly "unavailable" within the meaning of the rule because plaintiffs procured his absence. See id. That argument, though, is also unsupported. As our court of appeals has explained, a conclusion that a party has procured the absence of a witness requires a finding that the party "actively took steps to keep the deponents from setting foot in the courtroom," and "procuring absence and doing nothing to facilitate presence are quite different things." Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st Cir. 1988). The facts in Carey are instructive. There, the defendant cruise line sought to use the deposition testimony of its own employees, crewmen aboard one of its ships who were at sea at the time of trial. Id. Although the deponents were the defendant's employees (and the defendant presumably could have kept them on shore rather than sending them to sea), the court of appeals held that it was not error to admit their deposition testimony because there was no evidence that the defendant had taken any steps to keep them out of court. Id.
Here, as there, there is no evidence that plaintiffs "actively took steps" to make Chao unavailable; Wheelabrator does not suggest that plaintiffs are responsible for Chao's residence in Taiwan (nor could it credibly do so). At worst, plaintiffs have simply done nothing to facilitate his presence in court. Accordingly, there is no basis for excluding his deposition testimony under Rule 32(a).
II. The need to test Chao's credibility
Wheelabrator's next argument, that plaintiffs should not be permitted to offer Chao's deposition testimony because his credibility is at issue, also fails. That argument appears to be premised on the theory that Chao's physical presence is required to enable the factfinder's credibility assessment. It is no doubt true that the ability to observe a witness's body language and to hear the inflection and emphasis given in spoken testimony may aid a factfinder in evaluating both the credibility of the witness and the proper interpretation of ambiguous testimony. See, e.g., Aubrey Rogers Agency, Inc. v. AIG Life Ins. Co., No. 97-CV-529 MMS, 2000 WL 135129, *4 (D. Del. Jan. 13, 2000) (discussing "the importance for the jury to see and observe [the witness's] testimony and cross-examination on the issues to determine [his] credibility and reliability"); In re Air Crash Disaster at Stapleton Int'l Airport, 720 F. Supp. 1493, 1502 (D. Colo. 1989) ("[B]ecause the deposition testimony appeared subject to various interpretations the need for the jury to observe the demeanor of the witness to determine credibility was substantial."). Live testimony therefore presents a clear advantage over the recitation of deposition testimony from a transcript. Where a deposition has been videotaped, however, and it is the video recording of the deposition that is offered--as is the case here--any advantage to live testimony is diminished, as the finder of fact will still have the opportunity to observe the witness's body language and to hear the spoken testimony.
Cf. Carey, 864 F.2d at 204 ("To the extent [plaintiffs] believed it was critical to capture the demeanor and appearance of the witnesses for the jury, they could have videotaped the depositions."). Any gain to be had from requiring Chao's live testimony in lieu of his deposition testimony does not, under the ...