Problems At Trial: The Suddenly Unavailable Key Witness

If you've tried cases, you've probably lived through this nightmare. It's a few weeks before trial. You call your out of state client to make arrangements for your witnesses to be in the courtroom at the appointed time. But your contact tells you that the company has just fired your key witness.

What, you say?  What were you thinking? How could you do that? I can't try this case without Pete. After the initial shock has faded, you start to hope that Pete will show up voluntarily. You ask your client about that. Well, they say, it wasn't a pretty parting. And sure enough, Pete laughs and hangs up on you when you ask him if he will come to North Carolina to testify.

Now you are in crisis mode, scrambling for a way to get this key testimony. There's a video deposition of Pete, but all the questioning was done by opposing counsel. You probably prepped Pete before the deposition with that common advice that he shouldn't volunteer information, so there are a lot of one word answers, terse responses, and not much presentation of the warm side of Pete. You didn't ask a single question, counting on Pete striding confidently to the witness stand to carry your client's banner during your direct examination. The video just isn't going to play well.

What now? You scour the Business Court Rules. Rule 18.10 provides some hope. It says:

18.10 – Trial Preparation After the Close of Discovery. For good cause appearing
therefor, the physical or mental examination of a party may be ordered at any time prior to or during trial. Ordinarily, the deposition of a material witness not subject to subpoena should be taken during discovery. However, the deposition of a material witness who agrees to appear for trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or during trial.

Surely the unexpected firing of Pete is good cause, and you you make a motion to take a trial deposition of Pete per Rule 18.10. Will it be granted? Every case is different, but maybe not. A motion on similar facts was denied last week in the case of Hilb Rogal & Hobbs Company v. Sellars, in which Judge Diaz prohibited the taking of a deposition two weeks before trial.

The facts in Hilb Rogal need a little development. . . .

The key witness was Peter Plumb. Plumb hadn't been fired by the Plaintiffs but he had taken another job and wasn't able to come to North Carolina for the trial. Plumb had been deposed twice by the Defendant during discovery.  (Twice?) He was surely asked every question under the sun during those sessions, because the Court said that "the scope of those discovery depositions was likely sufficiently broad so as to encompass the substantive evidence Plaintiffs expected to elicit from Plumb at trial."

The Court concluded that Plaintiffs could not show "that they cannot present at trial through other means the same substantive evidence they seek to elicit from Plumb," either via the depositions or through other witnesses.

There are other facts which might have affected the decision to deny the deposition. The trial had already been continued once based on Plaintiffs motion to take depositions of four other witnesses who had become unavailable for trial. And when Plaintiffs found out about Plumb's sudden departure, they didn't ask for leave of court to take the deposition. Instead, they just noticed it. The matter was therefore presented to the Court based on Defendant's Motion for a Protective Order. Defendant also pointed out that Plaintiffs had known about Plumb's unavailability for nearly six weeks before asking the Court for permission to take his deposition.

Although Judge Diaz prohibited the deposition, he left the door open to revisit his Order. He said "should it become clear at trial that Plaintiffs absolutely need additional evidence from Plumb to meet their burden, the Court may keep the record open to re-visit this issue."

This post, by the way, is the sixth on the vigorously litigated Hilb Rogal case. If you type "Hilb" in the search box at the left side of the blog, you can find all of them. They include a published decision on the propriety of "General Objections" in discovery responses, an order granting a preliminary injunction on a non-compete agreement over Defendant's argument that he had never signed the agreement and he presented evidence that his signature had been forged, an order quashing a subpoena to an out of state non-party even though that company had a registered agent in North Carolina, and a post on motions in limine in non-jury trials. 

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