Bad Faith - Federal District Court Addresses Use of Videotaped Deposition Excerpts by Plaintiff in Bad Faith Trial
Federal District Court Addresses Use of Videotaped Deposition Excerpts by Plaintiff in Bad Faith Trial
Earlier this week, the U.S. District Court for the Northern District of Iowa addressed a number of issues that frequently arise in the trial of bad faith cases. The court in Niver v. Travelers Indemnity Company of Illinois,
No. C 01-3064-MWB (May 3, 2006) considered, among other things, the plaintiff’s request to use excerpts of videotaped depositions of the insurer’s adjusters in his case in chief, even though the adjusters would be present
to testify at trial.
These issues arose in a first-party bad faith action for failure to pay workers compensation benefits. Prior to trial, plaintiff sought advance evidentiary rulings on a number of issues. Plaintiff argued that he should
be allowed to use excerpts of adjuster depositions because doing so would expedite his case and because he was “entitled to present his case in the manner he deems most effective.” He argued that this approach
was permitted under the following rules: (i) Fed. R. Civ. P. 32(a)(1) and Rule 801(d)(2) of the Federal Rules of Evidence as an admission of a party opponent; (ii) Fed. R. Civ. P. 32(a)(2), because the witnesses in question were
officers, directors, managing agents, or persons designated under Rule 30(b)(6), and (iii) Fed. R. Civ. P. 32(a)(3)(B), because the witnesses were more than 100 miles from the place of trial.
The insurer responded by asserting that it intended to bring the witnesses to testify live and that, although the videotaped deposition excerpts could be used for purposes of cross-examination, there was no need for the excerpts
to be used in plaintiff’s case in chief. The insurer also objected that the depositions were noticed as “discovery” rather than trial depositions, that the witnesses were not officers, directors, managing
agents, or person designated under Rule 30(b)(6), and that Rule 30(a)(3)(B) was inapplicable because the witnesses would be available to testify live at trial.
As an initial matter, the district court ruled that the fact that the depositions had been noticed as “discovery” depositions was not determinative. The court then concluded that plaintiff had not demonstrated
that the depositions were admissible as admissions of a party opponent under Rule 801(d)(2). Specifically, the court ruled that plaintiff has not shown that “each of the witnesses was still in [the insurer’s]
employment at the time of the deposition, that the witnesses’ statements concern a matter within the scope of their employment, that the statements dealt with conduct giving rise to the ‘bad faith’ claim . .
. , and that the statements are . . . ‘admission[s] to the facts in this case,’ and connected to the case by more than conjecture” (citations omitted). It similarly held that plaintiff had failed to establish
that the witnesses fell within the categories set forth in Rule 32(a)(2). Finally, the court held that plaintiff’s argument under Rule 32(a)(3)(B) was premature because the proximity of a witness to the place of trial
must be determined as of the time when the witness is called at trial. In so ruling, it noted that the insurer had represented that the witnesses would be present at the courthouse to testify when required. The court
also cited case law recognizing “the universal preference for live testimony” when considering whether to allow deposition testimony in lieu of live testimony.
For these reasons, the court refused to give plaintiff blanket permission to use videotaped excerpts in his case in chief, but noted that he remained free to use the excerpts for purposes of impeachment.