90 F.R.D. 377 (S.D.N.Y. 1981), 69 Civ. 200 (DNE), United States v. International Business Machines Corp.

Docket Nº:69 Civ. 200 (DNE).
Citation:90 F.R.D. 377
Opinion Judge:EDELSTEIN, District Judge:
Attorney:U.S. Dept. of Justice, Antitrust Division, for plaintiff United States of America. Cravath, Swaine & Moore, New York City, for defendant IBM.
Case Date:May 27, 1981
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 377

90 F.R.D. 377 (S.D.N.Y. 1981)

UNITED STATES of America, Plaintiff,



No. 69 Civ. 200 (DNE).

United States District Court, S.D. New York.

May 27, 1981

Defendant in antitrust action moved for admission of designated sections of 15 depositions taken before and during the course of trial. The District Court, Edelstein, J., held that: (1) depositions of witnesses who were beyond 100 miles but within district could be used at trial despite fact that the deponents were subject to subpoena power of the court; (2) depositions of those witnesses who testified at trial were not admissible when offered after witnesses' appearances, particularly in light of fact that offering party made no attempt to elicit the testimony it sought to offer by way of those depositions when witnesses were on the stand; and (3) stipulations by parties relating to the depositions used at trial did not apply prospectively to depositions taken after its execution and did not apply to deponents who gave live testimony at trial.

Order in accordance with opinion.

Page 378

U.S. Dept. of Justice, Antitrust Division, for plaintiff United States of America.

Cravath, Swaine & Moore, New York City, for defendant IBM.

Page 379


EDELSTEIN, District Judge:


IBM, defendant in this antitrust action, has moved this court to admit designated sections of fifteen depositions taken before and during the course of this trial.1 IBM seeks admission of the depositions as part of its direct case. Ten of the depositions were taken by defendant of plaintiff's listed trial witnesses. Six of these ten deponents later testified at trial for plaintiff. The remaining five depositions were taken by plaintiff of defendant's proposed trial witnesses.2 IBM, in its various motions and offers, sets forth three grounds of support in favor of the admissibility of the depositions. These are, first, Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure, specifying the use of depositions in court proceedings; second, Rule 804(b)(1) of the Federal Rules of Evidence, the former testimony exception to the hearsay rule; and third, a June 7, 1975 stipulation between the parties relating to use of depositions at trial.3 The government opposes admission of the depositions, arguing that IBM's proffered bases for admissibility are inapplicable and that admission would result in unfairness.

Scherer 8/19/74 IBM Govt. Yes DX 7647
Oelman 6/25/74 IBM Govt. Yes DX 9097
Rice 6/26/74 IBM Govt. Yes DX 9106
Perlis 6/18/74 IBM Govt. Yes DX 9107
Currie 3/29/76 IBM Govt. Yes DX 9098
Cohen 2/28/76 IBM Govt. Yes DX 9101
Deacon 10/2/75 IBM Govt. No DX 7641
Rademacher 2/17/77 IBM Govt. No DX 9102
McColough 3/12/76 IBM Govt. No DX 9103
McKenna 3/4/77 IBM Govt. No DX 9099
Talvola 8/1/78 Govt. IBM No DX 9096
Witschey 8/24/78 Govt. IBM No
DuBois 7/12/78 Govt. IBM No Offer
Mueller 9/14/78 Govt. IBM No of
Harris 6/28/78 Govt. IBM No Proof

DISCUSSION (1) Fed.R.Civ.P. 32(a)(3)(B) IBM's primary basis for admission of the depositions is Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure, which provides:

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds ... that the witness is at a greater distance than 100 miles from the place of trial or hearing ... unless it appears that the absence of the witness was procured by the party offering the deposition.

IBM claims that because each of the deponents is further than 100 miles from trial, the depositions must be admitted. The government responds that Rule 32(a)(3)(B) does not permit use of these depositions. First, plaintiff argues that Rule 32(a)(3)(B) does not apply when the deponents are subject Page 380 to the court's subpoena power under 15 U.S.C. s 23 (1976), which permits a witness to be subpoenaed nationwide in antitrust suits brought by the United States.4 Second, plaintiff argues that the rule does not allow admission of " discovery" as opposed to " evidentiary" depositions. Third, the government argues with respect to six of the depositions that the rule does not authorize admission when the deponent has testified at trial. Plaintiff's first contention is that the 100 mile limit of Rule 32(a)(3)(B) relates to the availability of a witness for trial, and that when a witness is available, or subject to the subpoena power of the court, the rule is inapplicable. Fed.R.Civ.P. 45(e) normally governs a witness' geographic availability for trial. It provides that a trial subpoena " may be served at any place within the district, or at any place without the district that is within 100 miles of the place of the hearing or trial specified in the subpoena ...." The government contends that because trial subpoenas usually cannot be served beyond the 100 mile limit specified both in Rule 32(a)(3)(B) and Rule 45(e), use of a deposition at trial is contingent upon the inability to serve a trial subpoena. Thus, the government concludes that because the court has nationwide subpoena power in the present case, the 100 mile rule does not apply. The government's argument is built with solid logic, but on a faulty foundation. Rule 45(e) permits service within 100 miles or within the district. If Rule 45(e) contained only the 100 mile provision, or if Rule 32(a)(3)(B) referred to the district, a linear relationship between subpoena power and use of depositions might be established. However, the geographical provisions of the two rules are not identical. The deposition of a witness who is beyond the 100 mile limit but within the district can be used at trial, although the deponent is subject to the subpoena power of the court. SCM Corp. v. Xerox Corp., 77 F.R.D. 16, 17 n.2 (D.Conn.1977); Houser v. Snap-On Tools Corp., 202 F.Supp. 181, 189 (D.Md.1962). In fact, the drafters of the rule permitting deposition use rejected a proposed version which tracked the language of the trial subpoena provision. The Preliminary Draft of Rule 26(d) (April, 1936), the predecessor of Rule 32(a)(3)(B), would have precluded use if the deponent was within 100 miles of the place of trial or within the district. The rule as adopted permits use if the witness is at a greater distance than 100 miles from the courthouse, thus indicating an intention that deposition use was not to be contingent on a witness being beyond the subpoena power of the court. See 4A Moore's Federal Practice P 32.05(1), at 32-25 n.5 (2d ed. 1981); Pike & Willis, The New Federal Deposition-Discovery Procedure, 38 Col.L.Rev. 1436, 1446 (1938). The drafters apparently had two related objectives in designing the 100 mile rule as it now stands. One was to permit deposition use when a witness was beyond the subpoena power of the court. The other was to permit deposition use when the deponent would be unduly inconvenienced by requiring his presence at trial, even if the deponent was subject to subpoena power. The drafters presumedly felt that it would be too burdensome to require a deponent beyond the distance of 100 miles to appear at trial. Thus, the court holds that admissibility of depositions under the 100 mile provision of Rule 32 is not dependent on the subpoena power of the court.5 Page 381 Plaintiff's second argument is that Rule 32(a)(3)(B) does not provide for admission of " discovery" depositions. Plaintiff claims that the depositions it took of IBM's prospective witnesses are incomplete and " discovery" in nature because they were taken to prepare for cross-examination. Plaintiff also claims that IBM's depositions of its proposed witnesses are " incomplete," as plaintiff did not cross-examine its own witnesses. Plaintiff's argument is without merit. Rule 32 does not " evince a distinction as to admissibility at trial between a deposition taken solely for purposes of discovery and one taken for use at trial ...." Rosenthal v. Peoples Cab Co., 26 F.R.D. 116, 117 (W.D.Pa.1960). Likewise, any decision by plaintiff to limit its questioning during depositions is not a bar to admission of the depositions under Rule 32(a)(3)(B). Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887, 889-91 (5th Cir. 1969); 6 see 8 Wright & Miller, Federal Practice and Procedure s 2007, at 38 n.1 (1970).7 It may be true that the government's decision to limit its questioning at depositions has resulted in deposition records favorable to IBM. However, plaintiff was aware of IBM's position that there is no distinction between " discovery" and " evidentiary" depositions and of IBM's intention to offer depositions into evidence. The admission of unfavorable deposition records was a risk the government assumed when it chose to limit its questioning. The government's final contention is that deposition use under Rule 32 is inappropriate when a deponent has subsequently testified at trial. Six of the depositions offered by IBM are of plaintiff's witnesses who later appeared live at trial. There is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness. As Judge Learned Hand stated, " (t)he deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand." Napier v. Bossard, 102 F.2d 467, 469 (2d Cir. 1939); see Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir. 1946). This policy is embodied in Rule 32(a)(3)(E), which...

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