CHRI STI NA CONYERS WI L L I AMS, Plaintiff,
v. ROBERT JOHNSON, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 06-02076 ( CKK)

MEMORAN DUM OP INION AND ORDER

(Nove mber 18, 2011) In this action, Plainti ff Christina Cony ers Williams (“Wil liams”) cla ims that Defenda nt, the District of Columbia (the “ District”), r etaliated a g ainst her in violation of the District of Columbi a Whistl eblower Protection Act. More specific ally , she alleg es that Robert Johnson, t he Senior Deputy

Direc tor of the Addic tion Prevention and Recove ry Administration, and David Anthony , the Chief of Staff to Mr. J ohnson, retaliate d ag ainst her in a va riety of wa y s for testimony that she g ave be fore the District of Columbia Council in Februa ry 2006. The a ction is

1 now in the middle of a jury trial, which be g an on Nove mber 16, 2011. This Memorandum Opinion and Or der a ddresse s the question of whe ther the D istrict has shown that Mr. Anthony

qualifies as a

n “unava ilable witness,” suc h that the District might use his deposition at trial in accor dance with Rule 32 of the Fe dera l Rules of Civil Procedur e. In 2

Whil e it has not alwa

y s been the case , Mr. J ohnson and Mr. Anthony now appe ar in this 1 action solely

in their offic ial capa cities. The pa rties ar e in ag ree ment that the only true de fenda

nt at this point i s the District itself. The Court summarized its decision on the rec ord at the be g inning of the trial day

on 2 November

18, 2011support of its positi on, the District re lies exclusively on Rule 32(a) (4)( D), whic h provides: A party may use for any purpose the deposition of a witness, whether or no t a p ar t y , if the court finds
. . . that the party offe ring the deposition could not procure the witness’s attenda nce by subpoena. F E D . R. C I V . P. 32(a) (4)( D). The question for the Court is whethe r the District e x erc ised “re asonable diligenc e” in attempting to proc ure Mr . Anthony ’s attenda nce by subpoena. The Court finds that the District has fa iled to meet this standard. Ac cording ly , in an exercise of its discretion, the Court shall pre clude the D istrict from using Mr. Anthony ’s deposition in lieu of live testimony

on its case- in-chief

. 3 I. BACKG ROUND Followingthe Court’s re solution of the parties’ dispositive motions and motions in limine , the Court held a Status Hea ringon J uly

25, 2011 to discuss pretrial proc eeding s. During that hear ing, the Court ordere d “the pa rties to exercise their

best eff orts to contact a ll their anticipated w itnesses and de termine their a vailability

for tria l,” stating that it ex pecte d the par ties to “be a ble to identify

those witnesses that ar e likely to testify at trial” at the Pretrial Confer ence . Orde r (July

25, 2011), ECF N o. [134] , at 6. When the Court held the first Pretria l Confere nce on September 1, 2011, it orde red the parties to “pr omptly contac t anticipated witnesse s to determine their ava ilability

for tria l for the we eks of Nove mber 7, Nove mber 14, a nd November

28, 2011,”
Whil e the Court re nders its dec ision today on the re cord a s a whole, its consider ation 3 has foc used on the followingdocuments, listed in chronolog ical orde r of their filing: District of Columbi a’s Stmt. Rega

rdingUnava ilability

of David Anthony

(“D ef.’ s Stm t.”), ECF No. [175] ; Aff. of Attempted Serv. (“ Def

.’s Aff .”), ECF No. [175-1] ; Pl.’s Opp’n to the District’s Req. for a Findingthat David Anthony is “Unava ilable” ( “Pl.’s Opp’n” ), ECF N o. [181] ; District of Columbi a’s Reply

in Furthe r Supp. of its St mt. Rega rdingUnava ilability

of David Anthony (“D ef.’ s Reply ”), ECF No. [187] . The Court has a lso relied on the state ments and ar g uments raised by counsel on the r ecor d, in particular on October

19, 2011, November

14, 2011, November

17, 2011, and Nove mber 18, 2011. 2to “advis[e] t he Court of the r esult of their inquiries,” and to “indicat[ e] when the pa rties and witnesses w[ould] be ava ilable to proce ed to trial.” O rder (Sept. 1, 2011), ECF N o. [152] , at 8-9. On September

12, 2011, the par

ties filed a Joint Status Report, where in both sides repr esente d that they

“ha[d] attempted to contact their significant non-pa rty witnesses” but ha d not “re ceive d any

response to those communications to date.” Par ties’ J oint St atus Report Reg ardingProposed Trial Da tes, ECF No. [153], at 1. On September 13, 2011, upon re viewing the par ties’ J oint St atus Report, the Court set the date for the first day of trial as N ovember

16, 2011, order ing the parties to “pr omptly mak[e] all necessar

y arr ang ements to secur e their witnesses’ availability

at trial, including , if appropr iate, the issuanc e of subpoe nas.” Min. Or der (Sept. 13, 2011). On September

15, 2011, the par

ties filed desig nations of the depositions that they might use at trial, with both sides indicatingthat they might use Mr . Anthony ’s deposition. SeeJ oint Supplement to the Revised J oint Pretrial Stmt ., ECF No. [154]. I n response to Wi lliams’ desig nations, the District stated that it had “no obje ctions . . . based on Plaintiff’s r epre sentation that the desig nated por

tions will only

be used to the e x tent Mr. Anthony is unavailable f

or trial.” Id. at 3. Mea

nwhile, in response to the District’s desig nations, Wi lliams “object[ed]” and “dema nd[ed] strict compliance with Fed.R.Civ.P. 32(a)( 4).” Id. at 19. Immediately below Wil liams’ objection, the District “r espond[ed] t hat the deposition testimony of Mr. Anthony

will only be off ere d to the extent he is unavailable to testify at trial.” Id. at 20. Subsequently , at the continued Pre trial Confere nce he ld on October 19, 2011, the District informed the Court that it had be en unable to secure Mr. Anthony ’s ag ree ment to appea r voluntarily

at trial. F ollowing the c onfer ence , the Court order ed the pa rties to appea

r for a 3hear ing to a ddress their obje ctions pertainingto deposition designations. Min. Order (O ct. 19,

2011). Prior to that hea

ring , the par

ties filed re vised deposition desig nations, narr owing their
are as of dispute. SeeRevised J oint Pretrial Supplement to the Revised J oint Pretrial Stmt ., ECF No. [172] . Both sides a g ain indicated that they might use Mr . Anthony ’s deposition at trial. In response to Wi lliams’ desig nations, the District ag ain stated that it had no “ objections . . . based on Plaintiff’s repr esentation that the desig nated por tions will only

be used to the e x tent Mr. Anthony is unavailable f

or trial.” Id. at 3. In response to the District’s designations, Wi lliams ag ain “objec t[ ed]” and “ demand[ed] strict compliance with F ed.R.Civ.P. 32(a)(4).” Id. at 8. Once ag ain immediately

below Willi ams’ objec tion, the District ag ain “r espond[ed] t hat the deposition testimony

of Mr. Anthony

will only be off ere d to the extent he is unavailable to testify at trial.” Id. at 9. On Novembe r 7, 2011, the Court held a continued Pretria l Confere nce to a ddress the parties’ deposition designations and objections to those desig nations. SeeOrde r (Nov. 7, 2011) , ECF No. [173], at 1. During the confe renc e, the District, indicating that it had be en unable to locate Mr . Anthony , inquired as to what the Court would “be e x pectingin terms of the unavailability

showing .” At this point, the Court learned f or the fir st tim e that the pa rties wer e in ag ree ment that Mr. J ohnson was an “ unavailable witness” bec ause he was located outside the Court’s subpoena pow er, see F E D . R. C I V . P. 32(a) (4)( B) , but were in disag ree ment as to whethe r Mr. Anthony

qualified a s an “una

vailable witness.” In light of the appar ent dispute, the Court order ed ea ch side to file “ [a] statement . . . providinga leg al and f actua l basis for beingable to use David Anthony ’s deposition testimony at trial, . . . includ[ing] an explanation as to why such use would be c onsistent with F E D . R. C I V . P. 32 ( e.g. , ‘the pa rty offe ring the deposition could not
4procur e the witness’ s attendanc e by subpoena’ ), with citation to appropr iate leg al authority .” Id. On Novembe r 8, 2011, at 8:00 p.m., the District make its first attempt to serve Mr. Anthony with a subpoena

requiringhis attendanc e at the tr ial beg inning on Nove mber 16, 2011. Def .’s Aff . ¶ 1. An investig ator fr om the Offic e of the Attorney Gene ral for

the District of Columbi a visited Mr. Anthony ’s re sidence at 1443 ChanningStreet, N.E., Washing ton, D.C. 20008, but no one answe red when he knoc ked on the f ront door. Id. A neig hbor conf irmed Mr. Anthony resided a t the addre ss, but indicated, in sum or in substance, that Mr. A nthony “come s and g oes.” Id. The District’s inve stigator left his business car d at the fr ont door and lef t the premises. Id. On Novembe r 9, 2011, at 7:45 a.m., the D istrict’s investigator made a second attempt to
serve Mr. Anthony

with a subpoena
. Id. ¶ 2. The inve stigator noticed that his business ca rd
rema ined in the same pla ce. Id. Ag ain, his knocks wer e not answe red. Id. Meanwhile, a fe male identifying he rself a s Mr. Anthony ’s “c ousin” approa ched the investigator, confir med that Mr. Anthony resided a t the addre ss, and indicated that she had see n Mr. Anthony “a f ew da y s ag o.” Id. L ater that same da

y , at 3:45 p.m., the investigator retur ned to the re sidence and made a third attempt to serve Mr . Anthony with a subpoena
. Id. ¶ 3. Noticingthat his business card r emained in the same plac e, the investig ator this time posted the subpoena “ in plain view on the fr ont of [t he] residenc e” a

nd left the pre mises. Id. On Novembe r 10, 2011, the District filed a statement purpor

ting to show why

Mr. Anthony ’s deposition could be used a t trial in acc ordanc e with Rule 32. SeeDef .’s Stmt. On 4
Wil liams, meanwhile, fa iled to file a timely statement explaining why she could use 4 Mr. Anthony ’s deposition on her c ase- in-chief in acc ordanc e with Rule 32, leadingthe Court to prec lude Will iams from makingsuch use of Mr. Anthony ’s deposition at trial. SeeMin. Order 5November 12, 2011, upon revie wing the District’s stateme nt, the Court encour ag ed the District to “continue to attempt to serve Mr. Anthony with a subpoena

. . . until service is succ essful or until the District beg ins its case-in-c hief.” Min. Order (Nov. 12, 2011). T he Court would later lear n that the District made no attempt to serve Mr. Anthony over the four- day

period e x tending from Nove mber 10, 2011 throug h November 13, 2011, which included a three -day holiday
wee kend. On Nove mber 13, 2011, Willi ams filed her opposition t o the District’s stateme nt. See Def .’s Opp’n. On Novembe r 14, 2011, at 12:43 p.m., the District’s investig ator made a four th attempt to
serve Mr. Anthony

with a subpoena
. See Def .’s Reply Ex . 1. That same da

y , the Court held a final Pretria l Confere nce. D uringthe conf ere nce, the District’s counse l repre sented that they had been attempting to serve Mr. Anthony at his last-known re sidential addre ss and admitted that they believed that Mr. Anthony has re sided at that same a ddress “ all along .” The District’s 5 counsel a lso conce ded that they never had an e x plicit conversation, let alone an a g ree ment or stipulation wit h Wil liams’ counsel, a bout how Mr. Anthony

would be tre ated in ter

ms of his availability

for tria l. Rather, the District’ s counsel mer ely claimed that the “ tenor” of past discussions led them to assume that neither pa rty would be able to locate Mr. A nthony prior to trial. Fina lly , the District’s counse l frankly admitted that “in hindsight [they ] probably should have done more” to procure Mr. Anthony ’s attenda nce at trial, particular ly

“in the per iod” bef

ore (Nov. 10, 2011), E CF No. [178] ; Order Clarifying Minute O rder dated Nove mber 10, 2011 (N ov. 12, 2011), ECF N o. [180]
. Mr. Anthony

retire d from his employ

ment with the District of Columbia gove rnment 5 and the r ecor d does not indicate that the District was a war e of Mr . Anthony

havingobtained new employ ment. Acc ording ly , Mr. Anthony ’s re sidence was the sole f ocus of the D istrict’s service eff orts. 6the District first attempted to ser ve Mr. Anthony

on November

8, 2011. On Novembe r 15, 2011, the District filed its re ply in further support of its positi on that it may use Mr. Anthony ’s deposition at trial. See Def .’s Reply . That same da

y , at 11:00 a.m., the District’s investig ator made a fifth a ttempt to serve Mr. Anthony with a subpoena
. See id. Ex . 2. The trial be g an on Nove mber 16, 2011. Ea rlier that morning , at 2:30 a.m., the District made its six th attempt to serve Mr. Anthony with a subpoena . Wil liams rested he r ca se-in-c hief on November

17, 2011. On Novembe r 17, 2011, at the e nd of the trial da y , the District provided an on-the -re cord, or al ac count of its more re cent e ffor ts to serve Mr. A nthony . L ater that evening , at appr ox imately 7:00 p.m., the District made its seventh attempt to serve Mr. Anthony
. On Novembe r 18, 2011, at a pproxi mately

7:30 a.m., the District made its eig hth attempt to serve Mr. Anthony . That same da y , Wil liams submit ted a doc ument compar ing he r ef forts to serve a subpoena upon a

non-par ty witness who testified at tria l, J ulian Muhammad f/k/a Juli an Tolver , with the District’s ef

forts to serve a subpoena

on Mr. Anthony
. II. LEGAL STANDARD Rule 32 of the F eder al Rules of Civil P roce dure g overns the use of depositions in court proce eding s. I n support of its positi on that it may use Mr. Anthony ’s deposition testimony at trial, the District re lies exclusively on Rule 32(a) (4)( D), whic h provides: A party may use for any purpose the deposition of a witness, whether or not a party , if the court finds
. . . t h at t h e party offe ring the deposition could not procure the witness’s attenda nce by subpoena. F E D . R. C I V . P. 32(a) (4)( D). Implicit in t his provision is an obligation on the par t of the proponent to first exerc ise “re asonable diligenc e” to pr ocure the witness’s attenda nce by subpoena. Thomas v. Cook Cnty. Sheriff’s Dep’ t , 604 F.3d 293, 308 ( 7th Cir.), cert. de nied, __ 7U.S. __, 131 S. C t. 643 (2010); accord Angelo v. Arm strong W orld Indus., Inc. , 11 F.3d 957, 963 (10th Cir. 1993). Gene rally speaking , “re asonable diligenc e” is the “ degree of dilige nce” that would be expected f

rom an a ttorney of “or dinary

prudenc e” unde r the c ircumstance s prese nted. B L A C K ’ S LA W D I C T I O N A R Y 523 (9th ed. 2009). A ccor dingly , “[a] request to admit deposition testimony may be denie d if the off

eror ’s inability

to procure the witness’s attenda nce at trial is at least in part due to the offe ror’ s own lack of diligenc e.” 7- 32 J . Moore e t al., M O O R E ’ S F E D E R A L P R A C T I C E § 32-26. The propone nt bear s the burden of establishing that the require ments of Rule 32(a) (4)( D)
are satisfied, Angelo , 11 F.3d at 963, and the trial judg e has “ broad discr etion” to deter mine whether the propone nt has met its burden, Thomas , 604 F.3d at 308 (citing Griman v. Mak ousky , 76 F.3d 151, 154 ( 7th Cir. 1996)); see also Lear v. Equitable Life Assurance Soc . of U.S. , 798 F.2d 1128, 1135 ( 8th Cir. 1986), cert. de nied , 479 U.S. 1066 (1987). In particula r, the trial judge ’s deter

mination of whether

a par ty has exercise d rea sonable dilig ence will be revie wed with considera

ble def ere nce. Cf. United States v. Tchibassa , 452 F.3d 918, 925 n.4 ( D.C. Cir. 2006) (quoting Doggett v. United States , 505 U.S. 647, 652 (1992)), cert. de nied , 549 U.S. 1298 (2007); Gaw v. Comm’r , 45 F.3d 461, 465 ( D.C. Cir. 1995). III. DISCUSS ION Relying e x clusively

on Rule 32(a) (4)( D), the D istrict claims that Mr. Anthony qualifies as an “una vailable witness” beca

use it could not procur e Mr. Anthony ’s attenda nce by subpoena. SeeDef .’s Stmt. at 1. According ly , as both parties’ ag ree , the essential que stion for the Court is whether the District exercised “ rea sonable dilig ence ” in attempting to procure Mr. Anthony ’s attendanc e by

subpoena. F or the re asons set for th below, whethe r consider ed tog ether or
8independe ntly , the Court finds that the District has fa iled to meet this standard.

A. The District’s Efforts to Communicate with Mr. Anthony through Informal Means Before Nove mber 8, 2011 Do Not Establish Reasonable Diligence The District fir st contends that it exercised re asonable diligenc e in par t beca use “[i] n the
wee ks leadingup to trial,” it attempted to contac t Mr. Anthony by telephone a

nd e-ma il but
rec eived no r esponse. De f.’s Stmt. at 2. The District ave rs, and f or pre sent purposes the Court shall assume, that these inf ormal methods had be en succ essful in securing Mr . Anthony ’s voluntary attendanc e at his deposition. SeeDef .’s Reply at 1. Reg ardle ss, severa l considerations lead the Court to conc lude that the District’s a ttempts to contact Mr. Anthony throug h these informal mea

ns are not sufficient to establish re asonable diligenc e. First, despite ha

ving a mple opportunity

to do so, the District has neve r provided this Court with any

meaning ful measur e of de tail about its informal attempts to communicate with Mr. Anthony . The District’s pr offe r that such e ffor ts beg an “[a]fter . . . Septembe r 13, 2011,” Def .’s Reply at 1, essentially

reduc es to the unilluminating conte ntion that it attempted to communicate w ith Mr. Anthony throug h telephone a

nd e-ma il on mult iple occa sions. To meaning fully

assess the r easona

bleness of the District’s ef forts, the Court would nee d to know
more a bout when the District made such attempts and, more importantly , on how many
occa sions. The District has not provided this level of detail. Second, and mor e to the point, the District only indicates that it attempted to conta ct Mr. Anthony “[a]fter the Court’s September 13, 2011 Minute Order

direc ting the pa

rties to arr ang e for witnesse s.” De f.’s Reply at 1. B ut the Court’s Minute Order dated Septembe r 13, 2011 wa s not the first time that the Court directe d the par ties to reac h out to their witnesses to ensure their availability

for tria l. On J uly

25, 2011, the Court order ed the District to “e x erc ise [it s] best

9eff

orts to contact a ll [ its] anticipated w itnesses and de termine their a vailability

for tria l.” Orde r (Jul y 25, 2011), ECF N o. [134] , at 6. Despite this unambiguous instruction, the District offe rs no indication of what effor

ts, if any , it made to communicate w ith Mr. Anthony betwee n J uly

25, 2011 and September

13, 2011, a period of one month and ninete en day s. The Court does not doubt that there is a time a nd a plac e for

parties to use infor

mal means to sec ure a

witness’s voluntary attendanc e at tria l. Howeve r, had the District complied with the Court’s direc tive on J uly 25, 2011 to exercise its best eff orts to contact a ll its anticipated w itnesses, it would have known long befor e September 13, 2011, and ce rtainly

long be fore it first attempted to serve Mr. Anthony with a subpoena

on November

8, 2011, that informal mea ns were unlikely

to be
succe ssful in this case. Third, and f

inally , the District’s ar g ument does not speak dir ectly to the question posed by Rule 32(a) (4)( D), whic h is whether the District exercised r easona ble dilige nce in attempting to “proc ure the witness’s attenda nce by subpoena .” F E D . R. C I V . P. 32(a)( 4)(D) (empha sis added) . Ag ain, the Court does not doubt that informal attempts to secure a witness’s voluntary attendanc e at tria l may

be an a ppropriate consideration in evaluatingthe re asonable ness of the proponent’s e ffor

ts to secure the witness’s attenda nce, but the f

ocus of Rule 32(a )(4) (D) r emains the propone nt’s attempts to procure the witness’s attenda nce by formal pr ocess. In the final analy sis, informal methods of communication ar e not a substitute for attempting to proc ure a witness’s attenda

nce by subpoena. For the re asons set for

th above, whe ther c onsidered tog ether or indepe ndently , the Court finds that the District’s attempts to informally communicate w ith Mr. Anthony an unspec ified number of times be tween Septe mber 13, 2011 a nd November

8, 2011 are insufficient to
10discharg e the District’ s burden of establishing that it ex erc ised rea sonable dilig ence in attempting to secure Mr. Anthony ’s attenda nce a t trial. This remains true when these informal ef forts ar e considere d along side the District’s subseque nt, and belate d, eff orts to formally

serve Mr. Anthony with a subpoena . The Court now turns to that subject. B. The District’s Efforts to Formally ServeMr. Anthony with a Subpoena Eight Days Before Trial Do Not Establ ish Reasonable Diligence The District c ontends that it ex erc ised rea sonable dilig ence in part bec ause it made approximately

eig ht attempts to serve Mr. A nthony with a subpoena

betwee n November

8, 2011 and Nove mber 18, 2011. SeeDef .’s Stmt. at 2. For pre sent purposes, the Court sha ll assume, without deciding , that the District has pre sented c ompetent evidenc e supportingits attempts to
serve Mr. Anthony
. The Court shall also assume, w ithout deciding, that the total number of 6 attempts that the District made, c ould be suffic ient to establish rea sonable dilig ence in the rig ht circ umstances. Eve n with these assumptions, the Court finds that the District failed to e x erc ise
rea sonable dilig ence when it waited until Novembe r 8, 2011 to make its first attempt to serve Mr. Anthony with a subpoena
. The District’s c hara cter ization of the Court’s Minute Order dated September 13, 2011 as “dire cting the par

ties to arra

ng e for witnesses,” D ef.’ s Reply at 1, omits a critical pa

rt of what the Court actually

order ed in its Minute Order da ted September

13, 2011. Significa

ntly , the Court did not merely

direc t the parties to “a

rra ng e for witnesses.” A fter se tting the f irst day of trial for November

16, 2011, the Court expressly order ed the District to “

promptlymak[e] all necessar y
arr ang ements to secur e their w itnesses’ ava ilability at trial, including, if appropri ate, the issuance
The District re lies in part on the unsworn a verme nts of its counsel and unauthe nticated 6 e-ma il corre spondence
. 11of subpoenas .” Min. Orde r (Sept. 13, 2011) ( emphasis adde d). Upon re ceipt of suc h a dire ctive

from a tr ial judge , an attorne y of ordinar

y prudenc e would have done one of two things. F irst, a
rea sonable attorney

might have secur ed opposing counsel’s c onsent to treat a witness as unavailable and memoria liz ed the a g ree ment in a written stipulation. Second, bar ringsuch an ag ree ment, a re asonable attorney would promptly

take a ffirmative steps to “proc ure the witness’s attendanc e by

subpoena.” F E D . R. C I V . P. 32(a)( 4). The D istrict did neither. De spite the Court’s unambig uous instruction, the District plainly did not act promptly

to secure Mr. Anthony ’s availability

for tria l. I nstead, it waited until Novembe r 8, 2011, an e x traordina ry one month and 7 twenty -six day s later a

nd eight day s befor e trial, to make its first attempt to serve a subpoe na on Mr. Anthony . On this basis alone, the District fa iled to exercise re asonable diligenc e. Duringthe final Pretr ial Confere nce on N ovember 14, 2011, the District conc eded that it “should have done more ” to proc ure Mr . Anthony ’s attenda nce a t trial befor e Nove mber 8, 2011. Nonethele ss, the District attempts to mini miz e its dilatoriness throug h a var iety of ar g uments. The Court addr esses e ach a rgument in turn. First, the District, a

rguing that it “immediately took steps to subpoena Mr. Anthony when it became clea

r that Plaintiff intended to conte st Mr. Anthony ’s testimony ,” intimates that Wil liams’ counsel lulled the District’s c ounsel into believing that Wil liams would not contest Mr. Anthony ’s “una

vailability .” De f.’s Reply at 1. As an initial matter, this contention fa ils at
By failingto act promptly , the District contra vened the Court’s Minute Order dated 7 September 13, 2011. The Court has the discre tion to is sue “a ny just orders” when a pa

rty “fa ils to obey a sche duling or

other pre trial order .” F E D . R. C I V . P. 16(f)(1) (C). In this case, the Court finds it appropriate to exercise its discretion to prec lude the District fr om using Mr. A nthony ’s deposition testimony

at trial. Ac cording ly , this provides a sepa rate , alternative basis for the Court’s decision today
. 12the outset bec ause it ig nores the f act that the Court expressly order ed the District to “pr omptly mak[e] all necessar

y arr ang ements to secur e [its] witnesses’ availability at trial, including, if appropriate, the issuance of subpoenas ,” on September 13, 2011. Min. Order

(Sept. 13, 2011) (empha sis added). B ut rather than promptly

taking steps to subpoena Mr. A nthony , the District waited a nother month and twe nty -six day s befor e takingappropr iate ac tion. Further more, the District’s counse l also conce ded that they never had an e x plicit conversation, let alone an ag ree ment or stipulation with W illiams’ counsel, about how Mr. A nthony would be tre ated in terms of his ava ilability

for tria l. Even assuming , for the sa ke of a rgument, that a par

ty may
rea sonably

proce ed alongthe path to trial without subpoenaing a witness under

an assumption that opposing c ounsel might at some point consent to treat the w itness as “unavailable,” in this
case , the District’s assumption was not re asonable . As ea rly as September

15, 2011, one month and twenty -four

day s befor e the District f irst attempted to serve Mr. Anthony with a subpoena , Wil liams had unambig uously objected to the D istrict’s stated intention to use Mr. Anthony ’s deposition at trial. SeeJ oint Suppl ement to the Revised Joint Pretrial Stmt., ECF No. [154] , at 19. In so doing, Williams ex pressly stated that she would de mand “strict c ompliance” with Rule 32(a) (4), whic h g overns the de termination of whe n witnesses may be dee med “unavailable.” Id. The District re sponded that it would offe r Mr. Anthony ’s deposition testimony “only . . . to the extent [ that] he is unavailable to testify at trial,” Joint S upplement to the Revised Joi nt Pretrial Stmt ., ECF No. [154], at 20, demonstrating that the D istrict was aw are of the “ unavailability ” require ment, and Willi ams’ objec tion on that basis, long bef ore it beg an makingeff

orts to subpoena Mr . Anthony
. Second, the District c laims that severa l unidentified source s indicated at an unidentified
13point in ti me that Mr. Anthony had “disa ppear ed.” D ef.’ s Reply

at 2. This alleg ation is stated in such bar e and unilluminating te rms as to be virtually devoid of mea

ning. Mor e to the point, the District conce des that it has bee n servingMr. Anthony at his last-known re sidential addre ss and that it believed that Mr. Anthony has bee n residingat this address a ll along. I n other wor ds, it appea rs that the District has known wher e Mr. Anthony actua lly lives for quite some time. Eve n if this were not the case , it is i mplicit in t he conc ept of re asonable diligenc e that the pr oponent has made a re asonable attempt to locate the w itness. The District has made no attempt to show that it made re asonable eff orts to determine Mr . Anthony ’s location prior to Nove mber 8, 2011. Third, and f

inally , the District spec ulates that ea rlier e ffor ts to serve Mr. Anthony

might have be en unsucc essful, sug g esting that such spec ulation is supported by “the pr offe r made by Plaintiff’s counsel . . . that Plaintiff too had be en attemptingto find Mr. Anthony at his addre ss without any

succe ss.” Def

.’s Reply at 3. B ut the District is the sole proponent of Mr . Anthony ’s deposition testimony

and it is the District’s burden to e stablish reasona ble dilige nce. F or this
rea son, it is perhaps unsurprisingthat Wil liams’ “prof fer ,” as the District char acte rizes Wi lliams’ counsel’s r esponses to the Court’s inquiries duringthe final Pretr ial Confere nce on N ovember 14, 2011, did not include any meaning ful level of spe cificity as to what e ffor

ts W illiams m ade to locate Mr . Anthony

or whe n she made those eff orts. Moreove r, irre spective of the District’s eff orts to shift the attention to the effor ts made by

Wil liams, the District’s own evide nce undermines a

ny contention that ea

rlier e ffor ts to serve Mr. A nthony

would have be en unfr

uitful. Acc ordingto the District’s investig ator, a fema le identify

ing he rself a s Mr. Anthony ’s cousin had
seen Mr. Anthony

just a “fe w day s” prior to the D istrict’s first attempted ser vice on Nove mber 8, 2011. SeeDef

.’s Aff . ¶ 2. This evidenc e sug g ests that with even a modestly more prompt ef

fort,
14the District might have bee n succe ssful in servinga subpoena on Mr. Anthony . As Wil liams notes, “by

waiting so late to attempt servic e of pr ocess,” the District made “ no allowanc e for the possibili ty

that Mr. Anthony

might be out of

town for a

day or two,” Pl.’s Opp’n at 2, which should have be en of he ighte ned conc ern to the D istrict give n the appr oachingthree -day holiday
wee kend and the upcoming Thanksg iving holiday . Ultimately , it is t he District that must bear the responsibility

for a ny uncer tainty as to what mig ht have tra nspired had it complied with the Court’s direc tive to “promptly mak[e] all necessar

y arr ang ements to secur e” Mr . Anthony ’s availability

at trial, “inc luding, if a

ppropriate , the issuance of subpoena s,” on September 13, 2011. Min. Order

(Sept. 13, 2011). Simply put, we will never

know whethe r ea

rlier e ffor ts would have be en unsucc essful pre cisely because the District did not act with re asonable diligenc e. To summarize, this was the time line leadingup to trial:

• July 25, 2011 — three m onths an d f ourtee n days before the Distr ict first atte m pted service : The District is direc ted to “exerc ise [it s] best efforts to contac t all [i ts] witnesses and de termine their a vailability

for tria l.”

• Septem ber 1, 2011 — two m onths an d seven days b efore the D istrictfi rst atte m pted service : The District wa s order ed to “pr omptly contac t anticipated witnesses to deter

mine their ava ilability

for tria l” betwe en Nove mber 7, 2011 a nd November

28, 2011.

• Septem ber 13, 2011 — one m onth an d tw enty-six days bef ore t he District fi rst at tem pted service : The Court set the f irst day of trial for

November

16, 2011 and orde red the District to make “a ll necessa ry arr ang ements to secur e [its]
15witnesses’ availability at trial, including , if appropr iate, the issuanc e of subpoenas.”

• Septem ber 15, 2011 — one m onth an d tw enty-four days b efore the D istrict fi rst at tem pted service : Wil liams objects to the District’s stated intention to use Mr. Anthony ’s deposition at trial and de mands “strict c ompliance” with Rule 32(a) (4).

• October19, 2011 — twenty days b efore the D istrictfi rst at tem pted service : Wil liams ag ain objects to the District’s state d intention to use Mr. Anthony ’s deposition at trial and dema nds “strict complianc e” w ith Rul e 32(a )(4)
.

• Novem ber 8, 2011 — eight days before trial: The District make s its first attempt to serve a

subpoena on Mr . Anthony at his last-known re sidential addre ss.

• Novem ber 10, 2011 through Novem ber 13, 2011 — the week before tr ial: Despite its prior attempts beingunsucce ssful, the District makes no attempt to
serve a subpoena

on Mr. Anthony
. Takinginto account this time line, and af ter c are ful consider ation of the District’s showing , the Court in its di scre tion finds that, under the unique c ircumstance s prese nted in this
case , the District did not exercise “r easona ble dilige nce” in attempting to proc ure Mr . Anthony ’s attendanc e by

subpoena. O nce a

trial date ha s been se t, a par ty should promptly

and dilige ntly make e ffor

ts to subpoena witnesses if their attendanc e is not rea dily

procur ed through other means. This principle must be r einforc ed.

16C. Other Considerations Supporti ng the Court’s Determination

The Court has a lso considere d three other fa ctors in re achingits decision today . None of these fa ctors af

fec ts the Court’s bottom-line conclusion. Nonethele ss, the Court mentions them here to provide a more fulsome picture of the surr ounding c ircumstance s. First, the Court is sensitive to the fac t that issues of cre dibilit y are often “ cruc ial” in employ ment discrimination and re taliation actions such as this one, Christ ie v. Fore most Ins. Co. , 785 F.2d 584, 586 ( 7th Cir. 1986), and that live testimony is often essential to putting the jury in a position to assess a witness’s cr edibility . In this case, not only does the District see k to introduce Mr . Anthony ’s deposition in lieu of live testimony , which would have been its rig ht had it satisfied its burden of show ing c ompliance with Rule 32(a )(4) (D), the District seeks to introduce a

disjoint ed assor

tment of excerpts fr om Mr. Anthony ’s deposition testimony , underminingto some ext ent the jury ’s ability to meaning fully

assess the we ight that should be
acc orded to that testimony
. Second, as the trial has progresse d, the Court’s assessment ha s been that the role of Mr
. Anthony is not as gr eat a s the parties’ pretria l submiss ions describe d. In the Court’s view, Wil liams’ own testimony and other evidenc e in the re cord shows Mr . Anthony havinga fa

r more circ umscribed r ole in the per sonnel ac tions at issue than previously sug g ested. More over, Mr
. Anthony ’s deposition testimony , taken long befor e trial a

nd befor e the pa

rties had f ully cry stalliz ed the theor ies upon which they would proce ed at tria l, is not well-tailored to speak to the evidenc e that has a ctually been pr esente d at trial. As a r esult, the Court’s assessment is that the utility of Mr. Anthony ’s deposition, while not altog ether absent, ha s dimini shed as the tr ial has prog resse d. Howeve r, the Court pause s to observe that if the District consider ed Mr.
17Anthony ’s testimony important to its case, then that c onsideration obviously should have informed the dilig ence that it ex erc ised in attempting to proc uring Mr. Anthony ’s attenda nce by subpoena. Third, and f

inally , the Court is mindful that it also prec luded Will iams from using Mr. Anthony ’s deposition at trial for f ailing to e stablish his unavailability . Acc ording ly , the Court’s decision today

will not result in a one-sided r ecor d when it comes to Mr. A nthony ’s testimony
. Neither party has bee n able to introduce such testimony
. Ag ain, the Court emphasizes that none of these thre e fa ctors af

fec ts the Court’s bottomline conclusion. Even in their absenc e, the Court would exerc ise its discretion in the same
manner and find that the D istrict has, under the unique circ umstances pr esente d in this case, failed to e x erc ise rea sonable dilig ence in procuringMr. Anthony ’s attenda nce at trial. IV. CONCLUSION AND ORDER For the re asons set for

th above, the Court f

inds that the District has fa iled to car ry its burden of showing that it ex erc ised “re asonable diligenc e” in attempting to proc ure Mr
. Anthony ’s attenda

nce by subpoena. The ref

ore, a nd in an exercise of

the Court’s broa d discretion, it is, this 18t h day of Nove mber, 2011, he reby ORDERED that the District is PREC LUDED f rom using Mr . Anthony ’s deposition in lieu of live testimony

on its case- in-chief

. SO ORDERED. /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

18