4834-5716-2625 2902737-000015 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA AMIE AUSTIN, Plaintiff, v. TRANSPORTATION SERVICES, INC., Defendant. Civil Action No. 1:16-cv-00338 Collier/Steger JURY DEMAND DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION REQUESTING DR. PATRICK BOLT BE REQUIRED TO APPEAR IN PERSON AT TRIAL Comes Transportation Services, Inc. (“TSI”), by and through counsel, pursuant to Rules 1 and 32 of the Federal Rules of Civil Procedures and Local Rule 7.1, and respectfully contends that the Court should deny Plaintiff’s Motion Requesting Dr. Patrick Bolt Appear in Person at Trial and enter an order permitting Defendant to use Dr. Patrick Bolt’s deposition testimony to be videotaped for proof at trial. Defendant states the following in support: Rule 32(a)(4)(E) allows a party to use the deposition of a witness in lieu of live testimony at trial upon a showing “that exceptional circumstances make it desirable -- in the interest of justice and with due regard to the importance of live testimony in open court -- to permit the deposition to be used”. Fed. R. Civ. P. 32(a)(4)(E). Dr. Bolt is an orthopedic spine surgeon with Tennessee Orthopaedic Clinic in Knoxville, Tennessee.1 (Ex. A, ¶ 2). The trial in this matter is scheduled to occur on March 19 - 21, 2019 (Tuesday - Thursday). (Ex. A, ¶ 4). Dr. Bolt typically has multiple surgeries and office appointments on Tuesday, Wednesday, and Thursday each week. (Ex. A, ¶ 5). It would be a personal inconvenience for Dr. Bolt and would affect his scheduling in caring for and attending to patients to require his attendance in person at trial in 1 The Affidavit of Patrick M. Bolt, M.D. is attached hereto at Exhibit A. Case 1:16-cv-00338-CHS Document 70 Filed 12/06/18 Page 1 of 3 PageID #: 351 4834-5716-2625 2902737-000015 Chattanooga, Tennessee. (Ex. A, ¶¶ 6 -7). In the interest of justice, Defendant requests that it be permitted to present Dr. Bolt’s testimony by videotaped deposition rather than his personal appearance at trial. The Sixth Circuit Court of Appeals has held that “[d]istrict courts have broad discretion over docket control and the discovery process.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d 619, 642 (6th Cir. 2018)(citing In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). “It is well establish that the scope of discovery is within the sound discretion of the trial court.”). Id. The district courts use their discretion as a means “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1., see Rehau v. Colortech, Inc., 145 F.R.D. 444, 447 (E.D. Mich. 1993). “The rules should be interpreted to allow limiting the costs of litigation even in cases when those costs do not impose an abnormal burden.” Llewellyn-Jones v. Metro Property Group, Inc., 2014 WL 12659589 at *1 (E.D. Mich. Dec. 17, 2014)(quoting Clinton v. California Dept. of Corrections, 2009 WL 210459, at *4 (E.D. Cal. Jan. 20, 2009)). Allowing the Defendant to present Dr. Bolt’s videotaped deposition testimony as proof at trial will aid in providing an “inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. CONCLUSION Allowing Defendant to present Dr. Bolt’s videotaped deposition testimony as evidence at trial will not prejudice Plaintiff. Plaintiff will have an opportunity to cross-examine Dr. Bolt, and the video will allow the jury to see him testify. For the reasons set forth herein, Defendant requests permission to conduct Dr. Bolt’s videotaped and transcribed deposition for use in evidence at trial. Case 1:16-cv-00338-CHS Document 70 Filed 12/06/18 Page 2 of 3 PageID #: 352 4834-5716-2625 2902737-000015 Respectfully submitted, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC By: s/K. Stephen Powers K. Stephen Powers, #007088 Travis B. Holly, #023289 633 Chestnut Street, Suite 1900 Chattanooga, TN 37450 (423) 756-2010 (423) 752-9518 (fax) spowers@bakerdonelson.com tholly@bakerdonelson.com Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this 6th day of December, 2018, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing system. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 633 Chestnut Street, Suite 1900 Chattanooga, TN 37450 By: s/K. Stephen Powers cc: Ronald J. Berke, Esq. Berke, Berke, & Berke 420 Frazier Avenue P.O. Box 4747 Chattanooga, TN 37405 Attorneys for Plaintiff Case 1:16-cv-00338-CHS Document 70 Filed 12/06/18 Page 3 of 3 PageID #: 353
