United States District Court, W.D. Arkansas, Fayetteville Division
WAL-MART STORES, INC. PLAINTIFF/COUNTER-DEFENDANT
CUKER INTERACTIVE, LLC DEFENDANT/COUNTER-CLAIMANT
OPINION AND ORDER
TIMOTHY L. BROOKS DISTRICT JUDGE.
before the Court is the Joint Motion in Limine Regarding Adel
Atalla Deposition Designations (Doc. 339) filed on March 16,
2017. As a preliminary argument, Plaintiff Wal-Mart Stores,
Inc. ("Walmart") makes a global objection to
Defendant Cuker Interactive, LLC's ("Cuker")
use of Adel Atalla's deposition at trial on the grounds that
Atalla is not an unavailable witness under Federal Rule of
Civil Procedure 32. Cuker responds by stating that Atalla is
unavailable under the meaning of Rule 32, and that Walmart
has not shown that Cuker has facilitated Atalla's
unavailability. On March 29, 2017, the Court held a pretrial
conference and heard argument by both parties on the Motion.
The Motion is now ripe for adjudication. For the reasons
stated herein, the Joint Motion in Limine Regarding Adel
Atalla Deposition Designations (Doc. 339) is
DENIED IN PART. The Motion
is denied as to Walmart's objection that Atalla is not
unavailable under Federal Rule of Civil Procedure 32, but the
Court DEFERS ruling on the remaining issues
in the Motion, which will be ruled on in a separate Order.
it is desired to use the deposition of a person-other than an
adverse party- for substantive evidence, rather than merely
for impeachment, the conditions of Rule 32(a)(4) must be
satisfied. The rule applies to any witness 'whether or
not a party.'" 8A Wright, Miller, and Marcus,
Federal Practice and Procedure, Section 2146 (3d ed.
2010). However, the Court must first make a finding that such
a person is "unavailable" to testify live. Fed. R.
Civ. P Rule 32(a)(4) lists five circumstances that would
render a witness unavailable for this purpose. Here, Cuker
seeks to present the deposition testimony of its President,
Adel Atalla, because he "is more than 100 miles from the
place of hearing or trial, " which is one of qualifying
circumstances-provided that Atalla's "absence was
[not] procured by" Cuker. Fed.R.Civ.P.
32(a)(4)(B). Walmart does not dispute that Atalla lives
and works in California-clearly beyond the 100-mile threshold
of Rule 32(a)(4)(B). But Walmart does allege that Cuker is
"procuring [Atalla's] absence by its refusal to
bring him" to trial, and that "[i]t is not too late
for him to purchase an airline ticket or make other travel
arrangements." (Doc. 339, p. 3).
"procures" the absence of a witness if it
"actively [takes] steps to keep the deponents from
setting foot in the courtroom." A.H. ex rel. Hadjih
v. Evenflo Co., 579 F.App'x 649, 656 (10th Cir.
2014) (quoting Carey v. Bahama Cruise Lines, 864
F.2d 201, 204 (1st Cir. 1988)). Many courts have found that
"the mere fact that the deponents are employed by [the
party seeking to introduce his or her testimony] and that
there is an identity of interest between the deponents and
their employer is not enough to trigger exclusion because
'procuring absence and doing nothing to facilitate
presence are quite different things.'"
Carey, 864 F.2d at 204 (quoting Houser v.
Snap-On Tools Corp., 202 F.Supp. 181, 189 (D. Md.
1962)); Forrester Envtl. Servs., Inc. v. Wheelabrator
Techs., Inc., 2012 WL 1161125, at *2 (D.N.H. Apr. 6,
2012); Universal Elecs., Inc. v. Universal Remote
Control, Inc., 2014 WL 8096334, at *5 (CD. Cal. Apr. 21,
2014); see also Richmond v. Brooks, 227 F.2d 490,
493 (2d Cir. 1955) (permitting a party who was more than 100
miles from the trial venue to offer her own deposition as her
sole proof at trial in the absence of proof that she had
deliberately avoided the trial); Evenflo, 579
F.App'x at 656 (stating that "there is a difference
between procuring a witness's absence and electing not to
procure his attendance"); Nash v. Heckler, 108
F.R.D. 376, 378 (W.D.N.Y. 1985) (stating that the
"plaintiffs contention that the substantial identity of
interest between the deponents in question and defendants in
the case ipso facto raises a spectre of illicit
procurement by the defendants of the absence of such
deponents from trial is implicitly rebutted by
Richmond... and explicitly rejected in
Houser"). At least one district court in the
Eighth Circuit has found that a party did not procure the
absence of one of its officers "simply by having him
live and work outside the range of [the] court's subpoena
power." Johnson v. Land O'Lakes, Inc., 181
F.R.D. 388, 397 n.4 (N.D. Iowa 1998). See also, 8A
Wright, Miller, and Marcus, Federal Practice and
Procedure, Section 2147 (3d ed. 2010).
bottom, Walmart's argument is simply that Cuker is not
facilitating Atalla's attendance at trial, which is not,
standing alone, enough to show that Cuker is procuring
Atalla's absence. Without any evidence in the record that
Cuker actively took, or is actively taking, steps to keep
Atalla outside of the 100-mile radius of the Court, the mere
fact that Atalla lives and works in California as an officer
of Cuker does not serve as a basis for a finding of
procurement of Atalla's absence by Cuker under Rule
32(a)(4)(B). Therefore, the Court finds that Atalla is
unavailable under Rule 32(a)(4)(B).
on the reasons set forth above, the Joint Motion in Limine
Regarding Adel Atalla Deposition Designations (Doc. 339) is
DENIED IN PART. The Motion is denied as to Walmart's
objection that Atalla is not unavailable under Federal Rule
of Civil Procedure 32, but the Court DEFERS ruling on the
remaining issues in the Motion, which will be ruled on in a
 Atalla is Cuker's
 Walmart states that the basis for its
objection is Federal Rule of Civil Procedure 32(a)(3).
However, that subsection concerns when an adverse
party may use the deposition of the other party's
officer. See Fed. R. Civ. P. 32(a)(3). Because
Walmart is contesting whether Cuker may introduce the
deposition of its own officer, the Court interprets
Walmart's objection as falling under Federal Rule of
Civil Procedure 32(a)(4), which concerns unavailability of a
witness under Rule 32.
 "Although under [Federal Rule of
Evidence] 804 [the party seeking to admit the testimony]
would [bear] the burden of proving the unavailability [of the
witness], Rule 32 is an independent exception to the hearsay
rule." See In re Levaquin Prod. Liab., 2012 WL
1004995, at *3 (D. Minn. Mar. 26, 2012) (citing