Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Christina Conyers Williams v. Robert Johnson

November 18, 2011

CHRISTINA CONYERS WILLIAMS, PLAINTIFF,
v.
ROBERT JOHNSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Christina Conyers Williams ("Williams") claims that Defendant, the District of Columbia (the "District"), retaliated against her in violation of the District of Columbia Whistleblower Protection Act. More specifically, she alleges that Robert Johnson, the Senior Deputy Director of the Addiction Prevention and Recovery Administration, and David Anthony, the Chief of Staff to Mr. Johnson, retaliated against her in a variety of ways for testimony that she gave before the District of Columbia Council in February 2006.*fn1 The action is now in the middle of a jury trial, which began on November 16, 2011.

This Memorandum Opinion and Order addresses the question of whether the District has shown that Mr. Anthony qualifies as an "unavailable witness," such that the District might use his deposition at trial in accordance with Rule 32 of the Federal Rules of Civil Procedure.*fn2 In support of its position, the District relies exclusively on Rule 32(a)(4)(D), which provides:

A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds . . . that the party offering the deposition could not procure the witness's attendance by subpoena.

FED. R. CIV. P. 32(a)(4)(D). The question for the Court is whether the District exercised "reasonable diligence" in attempting to procure Mr. Anthony's attendance by subpoena. The Court finds that the District has failed to meet this standard. Accordingly, in an exercise of its discretion, the Court shall preclude the District from using Mr. Anthony's deposition in lieu of live testimony on its case-in-chief.*fn3

I. BACKGROUND

Following the Court's resolution of the parties' dispositive motions and motions in limine, the Court held a Status Hearing on July 25, 2011 to discuss pretrial proceedings. During that hearing, the Court ordered "the parties to exercise their best efforts to contact all their anticipated witnesses and determine their availability for trial," stating that it expected the parties to "be able to identify those witnesses that are likely to testify at trial" at the Pretrial Conference. Order (July 25, 2011), ECF No. [134], at 6.When the Court held the first Pretrial Conference on September 1, 2011, it ordered the parties to "promptly contact anticipated witnesses to determine their availability for trial for the weeks of November 7, November 14, and November 28, 2011," to "advis[e] the Court of the result of their inquiries," and to "indicat[e] when the parties and witnesses w[ould] be available to proceed to trial." Order (Sept. 1, 2011), ECF No. [152], at 8-9.

On September 12, 2011, the parties filed a Joint Status Report, wherein both sides represented that they "ha[d] attempted to contact their significant non-party witnesses" but had not "received any response to those communications to date." Parties' Joint Status Report Regarding Proposed Trial Dates, ECF No. [153], at 1. On September 13, 2011, upon reviewing the parties' Joint Status Report, the Court set the date for the first day of trial as November 16, 2011, ordering the parties to "promptly mak[e] all necessary arrangements to secure their witnesses' availability at trial, including, if appropriate, the issuance of subpoenas." Min. Order (Sept. 13, 2011).

On September 15, 2011, the parties filed designations of the depositions that they might use at trial, with both sides indicating that they might use Mr. Anthony's deposition. See Joint Supplement to the Revised Joint Pretrial Stmt., ECF No. [154]. In response to Williams' designations, the District stated that it had "no objections . . . based on Plaintiff's representation that the designated portions will only be used to the extent Mr. Anthony is unavailable for trial." Id. at 3. Meanwhile, in response to the District's designations, Williams "object[ed]" and "demand[ed] strict compliance with Fed.R.Civ.P. 32(a)(4)." Id. at 19. Immediately below Williams' objection, the District "respond[ed] that the deposition testimony of Mr. Anthony will only be offered to the extent he is unavailable to testify at trial." Id. at 20.

Subsequently, at the continued Pretrial Conference held on October 19, 2011, the District informed the Court that it had been unable to secure Mr. Anthony's agreement to appear voluntarily at trial. Following the conference, the Court ordered the parties to appear for a hearing to address their objections pertaining to deposition designations. Min. Order (Oct. 19, 2011). Prior to that hearing, the parties filed revised deposition designations, narrowing their areas of dispute. See Revised Joint Pretrial Supplement to the Revised Joint Pretrial Stmt., ECF No. [172]. Both sides again indicated that they might use Mr. Anthony's deposition at trial. In response to Williams' designations, the District again stated that it had no "objections . . . based on Plaintiff's representation that the designated portions will only be used to the extent Mr. Anthony is unavailable for trial." Id. at 3. In response to the District's designations, Williams again "object[ed]" and "demand[ed] strict compliance with Fed.R.Civ.P. 32(a)(4)." Id. at 8. Once again immediately below Williams' objection, the District again "respond[ed] that the deposition testimony of Mr. Anthony will only be offered to the extent he is unavailable to testify at trial." Id. at 9.

On November 7, 2011, the Court held a continued Pretrial Conference to address the parties' deposition designations and objections to those designations. See Order (Nov. 7, 2011), ECF No. [173], at 1. During the conference, the District, indicating that it had been unable to locate Mr. Anthony, inquired as to what the Court would "be expecting in terms of the unavailability showing." At this point, the Court learned for the first time that the parties were in agreement that Mr. Johnson was an "unavailable witness" because he was located outside the Court's subpoena power, see FED. R. CIV. P. 32(a)(4)(B), but were in disagreement as to whether Mr. Anthony qualified as an "unavailable witness." In light of the apparent dispute, the Court ordered each side to file "[a] statement . . . providing a legal and factual basis for being able to use David Anthony's deposition testimony at trial, . . . includ[ing] an explanation as to why such use would be consistent with FED. R. CIV. P. 32 (e.g., 'the party offering the deposition could not procure the witness's attendance by subpoena'), with citation to appropriate legal authority." Id.

On November 8, 2011, at 8:00 p.m., the District make its first attempt to serve Mr. Anthony with a subpoena requiring his attendance at the trial beginning on November 16, 2011. Def.'s Aff. ¶ 1. An investigator from the Office of the Attorney General for the District of Columbia visited Mr. Anthony's residence at 1443 Channing Street, N.E., Washington, D.C. 20008, but no one answered when he knocked on the front door. Id. A neighbor confirmed Mr. Anthony resided at the address, but indicated, in sum or in substance, that Mr. Anthony "comes and goes." Id. The District's investigator left his business card at the front door and left the premises. Id.

On November 9, 2011, at 7:45 a.m., the District's investigator made a second attempt to serve Mr. Anthony with a subpoena. Id. ¶ 2. The investigator noticed that his business card remained in the same place. Id. Again, his knocks were not answered. Id. Meanwhile, a female identifying herself as Mr. Anthony's "cousin" approached the investigator, confirmed that Mr. Anthony resided at the address, and indicated that she had seen Mr. Anthony "a few days ago." Id. Later that same day, at 3:45 p.m., the investigator returned to the residence and made a third attempt to serve Mr. Anthony with a subpoena. Id. ¶ 3. Noticing that his business card remained in the same place, the investigator this time posted the subpoena "in plain view on the front of [the] residence" and left the premises. Id.

On November 10, 2011, the District filed a statement purporting to show why Mr. Anthony's deposition could be used at trial in accordance with Rule 32.*fn4 See Def.'s Stmt. On November 12, 2011, upon reviewing the District's statement, the Court encouraged the District to "continue to attempt to serve Mr. Anthony with a subpoena . . . until service is successful or until the District begins its case-in-chief." Min. Order (Nov. 12, 2011). The Court would later learn that the District made no attempt to serve Mr. Anthony over the four-day period extending from November 10, 2011 through November 13, 2011, which included a three-day holiday weekend. On November 13, 2011, Williams filed her opposition to the District's statement. See Def.'s Opp'n.

On November 14, 2011, at 12:43 p.m., the District's investigator made a fourth attempt to serve Mr. Anthony with a subpoena. See Def.'s Reply Ex. 1. That same day, the Court held a final Pretrial Conference. During the conference, the District's counsel represented that they had been attempting to serve Mr. Anthony at his last-known residential address and admitted that they believed that Mr. Anthony has resided at that same address "all along."*fn5 The District's counsel also conceded that they never had an explicit conversation, let alone an agreement or stipulation with Williams' counsel, about how Mr. Anthony would be treated in terms of his availability for trial. Rather, the District's counsel merely claimed that the "tenor" of past discussions led them to assume that neither party would be able to locate Mr. Anthony prior to trial. Finally, the District's counsel frankly admitted that "in hindsight [they] probably should have done more" to procure Mr. Anthony's attendance at trial, particularly "in the period" before the District first attempted to serve Mr. Anthony on November 8, 2011.

On November 15, 2011, the District filed its reply in further support of its position that it may use Mr. Anthony's deposition at trial. See Def.'s Reply. That same day, at 11:00 a.m., the District's investigator made a fifth attempt to serve Mr. Anthony with a subpoena. See id. Ex. 2.

The trial began on November 16, 2011. Earlier that morning, at 2:30 a.m., the District made its sixth attempt to serve Mr. Anthony with a subpoena. Williams rested her case-in-chief on November 17, 2011. On November 17, 2011, at the end of the trial day, the District provided an on-the-record, oral account of its more recent efforts to serve Mr. Anthony. Later that evening, at approximately 7:00 p.m., the District made its seventh attempt to serve Mr. Anthony. On November 18, 2011, at approximately 7:30 a.m., the District made its eighth attempt to serve Mr. Anthony. That same day, Williams submitted a document comparing her efforts to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.