1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

LESTER A. FERREIRA SR. 

and EVA JEAN FERREIRA,

2:04-CV-1916-MCE-DAD

Plaintiffs,

v. MEMORANDUM AND ORDER

M/V CCNI ANTOFAGASTA, her

engines, tackle, apparel,

furniture, etc., COMPANIA

CHILENA DE NAVEGACION

INTEROCEANICA S.A., IN REM,

PORT OF STOCKTON, SECHSTE

REEDEREI ALSTERUFER 26 GmbH &

CIE KG, and SOPHIE RICKMERS

SCHIFFAHRTSGESELLSCHAFT mbH &

CIE KG,

Defendants.

----oo0oo----

Through the present motion Defendant SOPHIE RICKMERS

SCHIFFAHRTSGESELLSCHAFT mbH & CIE, KG (“Defendant”) has moved to

modify this Court’s April 1, 2005, Pretrial Scheduling Order

(“PTSO”). Defendant seeks leave of court to allow deposition of

a trial witness beyond the discovery cut off date set forth in

the PTSO. As explained below, the Court denies Defendant’s

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Because oral argument will not be of material assistance, 1

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h). 

2

Motion and hereby reaffirms the PTSO in its entirety. However,

the Court orders this addendum to Its PTSO permitting Defendant

to obtain the deposition of Mr. Yury Ilyn as requested.1

BACKGROUND

Plaintiff Lester A. Ferreira, Sr. (“Ferreira”) filed a

Complaint alleging injuries sustained during a line hauling

operation at the Port of Stockton, Dock 10-11. Defendant is the

ship owner that owned and operated the M/V CCNI ANTOFAGASTA on

July 25, 2003, the date of Plaintiff’s alleged injury. On that

date, Mr. Yury Ilyn (“Ilyn”) was Defendant’s Chief Officer in

charge of supervising the line hauling operations. Ilyn asserts

he was present and witnessed the incident in question.

Defendant contends that Ilyn has been at sea at least since

the PTSO was issued and was unavailable to be deposed until very

recently. Defendant further avers that its attempts to contact

Ilyn during the discovery period were unavailing until beyond the

discovery cut off date. Defendant has since successfully

contacted Ilyn and asserts that he has personal knowledge of the

events at issue and will testify on behalf of Defendant if so

permitted. Ilyn is returning to sea on July 9, 2006, rendering

him unavailable during the period designated for trial.

Consequently, Defendant seeks to acquire the taped deposition

testimony of Ilyn prior to his return to sea. 

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

STANDARD

The Federal Rules of Civil Procedure permit a party to

introduce at trial the deposition of a witness if the witness is

more than 100 miles from the place of trial or is unable to

appear because of imprisonment. Fed. R. Civ. P. 32(a)(3)(B) &

(C). In situations where a party can present the testimony of a

witness only by means of a deposition, the taking of that

deposition would be for a different purpose than the taking of a

discovery deposition, and should be allowed without regard to any

discovery deadlines. Estenfelder v. Gates Corp., 199 F.R.D 351,

354 (D. Colo. 2001). 

ANALYSIS

1. Character of Deposition

Plaintiffs informally contend that Defendant may not depose

Ilyn because doing so would violate the PTSO as the discovery cut

off date has passed. Defendants rebut that the taking of Ilyn’s

deposition is not discovery but instead preservation of trial

testimony. This issue has been discussed in a number of courts

but is an issue of first impression in this district. After due

consideration of both the Federal Rules of Civil Procedure as

well as applicable case law, the Court agrees with Defendant and

concludes that the taking of Ilyn’s deposition is not discovery

but is instead preservation of trial testimony.

///

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

As an initial matter, the Federal Rules of Civil Procedure

do not clearly differentiate between depositions purely for

purposes of discovery and depositions intended to preserve trial

testimony of an unavailable witness. Nonetheless, a distinction

has been recognized in several jurisdictions. See Spangler v.

Sears, Roebuck and Co., 138 F.R.D. 122, 124 (S.D. Ind. 1991)

(holding that even though discovery has closed “a party may still

prepare for trial by taking the depositions of witnesses whose

unavailability for trial is anticipated”); see also Charles v.

F.W. Wade, 665 F.2d 661 (5th Cir. 1982) (holding that it was an

abuse of discretion for a trial court to refuse to permit a

deposition for trial testimony solely on the basis that discovery

had closed); see also Estenfelder, 199 F.R.D at 355 (“[C]ourts

cannot ignore a party’s need to preserve testimony for trial, as

opposed to the need to discover evidence, simply because the

period for discovery has expired”) (emphasis in original).

In a particularly well thought opinion, the Estenfelder

court cited four factors relevant to whether or not a deposition

should be considered discovery or preservation of trial

testimony. Those factors are as follows: (1) the prejudice or

surprise of the party against whom the witness will testify; (2)

the availability of a cure for that prejudice; (3) the extent to

which the allowance of the deposition would disrupt the flow of

the case; (4) moving party did not act in bad faith or willfully

in seeking the deposition after the discovery period had ended. 

Id. at 356. As discussed infra, the Court concludes that what

Defendant seeks here is preservation of trial testimony rather

than discovery.

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

First, the Court is persuaded that Plaintiff will not be

prejudiced should the Court permit Defendant to depose Ilyn. 

Specifically, Defendant noticed the deposition of Ilyn nearly

three months prior to the date set for trial. In addition, the

testimony will be obtained two months in advance of trial giving

Plaintiff ample time to review the testimony in preparation for

trial. In addition, permitting Defendant to obtain Ilyn’s

testimony will not disrupt the flow of the trial as it will be

concluded long before trial begins. Lastly, the Court finds that

Defendant is not acting in bad faith by seeking Ilyn’s deposition

after the close of discovery. In fact, the Court is persuaded

that Defendant diligently pursued Ilyn’s testimony but was unable

to obtain the same due to Ilyn’s unavailability. In sum, the

Court concludes that justice is best served by permitting

Defendant to preserve Ilyn’s testimony for trial through

deposition irrespective of the close of discovery.

///

///

///

///

///

///

///

///

///

///

///

///

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

CONCLUSION

For the reasons set forth above, Defendant’s Motion to

Modify the PTSO is DENIED. However, the Court orders this

addendum thereto permitting Defendant to obtain the deposition of

Mr. Yury Ilyn as requested.

IT IS SO ORDERED.

DATED: June 22, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-01916-MCE -DAD Document 105 Filed 06/23/06 Page 6 of 6