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Case No. 17-CV-00007-LHK 

ORDER SUSTAINING DEFENDANTS’ OBJECTION TO PLAINTIFF’S DESIGNATIONS OF MARISCAL

DEPOSITION TRANSCRIPT

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, MONTEREY 

COUNTY RESOURCE MANAGEMENT 

AGENCY, and MONTEREY COUNTY 

PARKS DEPARTMENT,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER SUSTAINING DEFENDANTS’ 

OBJECTION TO PLAINTIFF’S 

DESIGNATIONS OF MARISCAL 

DEPOSITION TRANSCRIPT

Re: Dkt. No. 158

In Defendants’ Objection to Plaintiff’s designation of deposition transcripts, Defendants 

contend that Plaintiff cannot introduce deposition transcript testimony for Mark Mariscal 

(“Mariscal”) because Mariscal is not a party to the litigation, Mariscal was not employed by the 

County at the time of his deposition, and Mariscal will be available to testify at trial. ECF No. 158

at 3. 

Federal Rule of Civil Procedure 32 provides that a deposition may be used against a party 

on three conditions: (1) “the party was present or represented at the taking of the deposition or had 

reasonable notice of it”; (2) “it is used to the extent it would be admissible under the Federal Rules 

of Evidence if the deponent were present and testifying”; and (3) “the use is allowed by Rule 
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Case No. 17-CV-00007-LHK 

ORDER SUSTAINING DEFENDANTS’ OBJECTION TO PLAINTIFF’S DESIGNATIONS OF MARISCAL

DEPOSITION TRANSCRIPT

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United States District Court

Northern District of California

32(a)(2) through (8).” Fed. R. Civ. P. 32(a)(1). 

Plaintiff contends that Plaintiff may rely upon Mariscal’s deposition transcript for two

reasons. First, Plaintiff contends that she may rely on Mariscal’s deposition transcript as a 

deposition for an unavailable witness under Rule 32(a)(4). ECF No. 165 at 1–2. Rule 32(a)(4) 

provides, in relevant part, that a party may use the deposition of a witness if the Court finds “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.” Fed. R. Civ. P. 32(a)(4). Plaintiff contends that Mariscal resides in Southern

California, which is more than 100 miles from the place of the trial in San Jose, California. 

However, the parties’ joint witness list reflects that Mariscal will testify at trial remotely. ECF No. 

145. Mariscal’s testimony will be live, and Mariscal will be subject to cross-examination. 

The Court notes that Mariscal is appearing remotely during the COVID-19 pandemic. The 

San Jose courthouse, where trial will occur, is located in Santa Clara County. In Santa Clara 

County, as of June 6, 2021, there have been 119,553 confirmed COVID-19 cases, and 2,143 

people have died from COVID-19. Johns Hopkins University, COVID-19 Status Report, available 

at https://bao.arcgis.com/covid-19/jhu/county/06085.html. Furthermore, of the jurors who 

completed the jury questionnaire and have been summoned for jury selection in the instant case, 

over 50% stated that they were concerned about getting sick with COVID-19 if called to serve as a 

juror, and slightly under 50% stated that they were uncomfortable being in a very large courtroom 

with 20-30 people. See ECF No. 190. 

In order to prevent spread of COVID-19, the Coronavirus Aid, Relief, and Economic 

Security (“CARES”) Act authorizes federal courts to hold criminal proceedings remotely as long 

as the Court makes certain findings. See H.R. 748 § 15002(b)(2). Moreover, General Order 72-6 

provides that court proceedings should be held via telephone or videoconference with a limited 

number of exceptions. See Gen. Order 72-6. 

The Court notes that 5 out of 18 witnesses in the instant case are testifying remotely, 
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Case No. 17-CV-00007-LHK 

ORDER SUSTAINING DEFENDANTS’ OBJECTION TO PLAINTIFF’S DESIGNATIONS OF MARISCAL

DEPOSITION TRANSCRIPT

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United States District Court

Northern District of California

including one of Plaintiff’s witnesses. See ECF No. 145. These witnesses are testifying live and 

will be subject to cross-examination. Accordingly, the Court concludes that these witnesses are not 

unavailable under Rule 32(a)(4). Thus, Mariscal is not unavailable under Federal Rule of Civil 

Procedure 32(a)(4). See Rubio v. Smith, 114 F.3d 1195 (9th Cir. 1997) (noting that “[t]he right to 

cross-examination is fundamental to the trial process”); see also United States v. Swisher, 360 F. 

App’x 784, 786 (9th Cir. 2009) (affirming district court’s ruling to allow witness to testify by 

phone).

Second, Plaintiff contends that she may rely upon Mariscal’s deposition transcript as a 

deposition of a party under Rule 32(a)(3) or as an admission of a party pursuant to Federal Rule of 

Evidence 801(d)(2)(A) or (C). ECF No. 165 at 2–3. Rule 32(a)(3) provides that “[a]n adverse 

party may use for any purpose the deposition of a party or anyone who, when deposed, was the 

party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).” Fed. R. 

Civ. P. 32(a)(3) (emphasis added). Mariscal himself is not a party to this litigation. Moreover, 

when Mariscal was deposed, he was no longer working for the County. Accordingly, he was not 

the County’s “officer, director, managing agent, or designee.” Fed. R. Civ. P. 32(a)(3). For the 

same reason, Mariscal’s deposition testimony was not an admission of a party pursuant to Federal 

Rule of Evidence 801(d)(2)(A) or (C). Thus, Plaintiff may not rely on Mariscal’s deposition 

transcript as a deposition of a party under Rule 32(a)(3) or as an admission of a party pursuant to 

Federal Rule of Evidence 801(d)(2)(A) or (C).

Accordingly, Defendants’ Objection to Plaintiff’s designations of Mariscal’s deposition

transcript is SUSTAINED.

IT IS SO ORDERED.

Dated: June 7, 2021

______________________________________

LUCY H. KOH

United States District Judge