In Viiv Healthcare Company, et al. v. Mylan Inc., et al., C.A. No. 12-1065-RGA (D. Del. May 23, 2014), plaintiffs requested leave to submit the testimony of two of its 30(b)(6) witnesses by deposition in lieu of live trial testimony. Both witnesses resided more than 100 miles from the location of trial, although counsel did acknowledge that, should their request be denied, it would be possible to bring the witnesses to testify live. Id. at 2.
Under these circumstances, the Court denied plaintiffs’ request. First the Court noted that “[a]side from showing that the witnesses reside more than 100 miles from the location of the trial, Plaintiffs have failed to demonstrate why they have been unable to procure the witness’s presence for live testimony at trial. Parties are not required to take active steps to procure witnesses who would otherwise not be within 100 miles of the location of the trial. . . . However, this failure to procure may be taken into account when courts exercise their discretion regarding whether to admit the deposition testimony.” Id. at 2.
Additionally, even if the witnesses were unavailable under FRCP 32(a)(4)(B), the Court expressed concerns about admitted 30(b)(6) deposition testimony’s conflict with the rules of evidence. The Court explained that “[w]here Rule 30(b)(6) testimony is sought to be admitted at trial in lieu of live testimony pursuant to Rule 32(a)(4), it may be in conflict with both Rule 32(a)(I)(B) and Federal Rule of Evidence 602” and a Court must weigh the purposes of Rule 30(b)(6) against “the real dangers of admitted testimony based on hearsay.” Id. at 3 (citations omitted). Here, one witness’s testimony had relied at least in part on another employee’s knowledge, and thus “there is a substantial question about the reliability of his testimony.” Id. at 4. The other witness’s “testimony was also taken pursuant to 30(b)(6), and because there has been no evidence regarding the extent of his personal knowledge, there are similar issues of reliability.” Id. The Court distinguished the present case from cases in which 30(b)(6) deposition testimony was allowed because these were party-witnesses and the “actual scope of either” witness’s personal knowledge had not been established. See id. at 3-4.
Finally, the Court noted that plaintiffs could renew their request at trial when the court “may have more context to evaluate the request.” Id. at 4-5.