The opinion of the court was delivered by: Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' motion in limine to exclude certain deposition testimony and Plaintiff's cross-motion to admit the testimony. The motion presents the issue of whether and to what extent the Rule 30(b)(6) deposition of a non-party witness can be used at trial. Defendants Kraft Foods Inc. and Kraft Foods Global, Inc. (collectively "Defendants") object to the deposition testimony of a Rule 30(b)(6) witness who testified on behalf of non-party American Culinary ChefsBest, Inc. ("ChefsBest"), raising hearsay and lack of personal knowledge arguments. Plaintiff Sara Lee Corporation ("Plaintiff") responds that the Rule 30(b)(6) deposition may be admitted as that of an unavailable witness, and that the witness properly testified on matters reasonably within the corporation's knowledge. For the reasons explained below, the Court grants in part and denies in part the motion and the cross-motion.
In this lawsuit, two of the nation's largest hot dog manufacturers accuse each other of false and deceptive advertising. Plaintiff, maker of Ball Park Franks, sued Defendants, who own the Oscar Meyer brand, and Defendants filed counterclaims. Relevant to these motions, Defendants accuse Plaintiff of misusing a ChefsBest taste test award, by employing it to promote products different from those that won the award.
The present motions involve deposition testimony by Scott Thompson, a ChefsBest employee. ChefsBest designated Thompson as the corporate representative to testify on its behalf, in response to Rule 30(b)(6) subpoenas issued by both Plaintiff and Defendants. Defendants also subpoenaed Thompson in his personal capacity. Both sides questioned Thompson at the same deposition. Defendants questioned Thompson primarily on the basis of his personal knowledge, while Plaintiff questioned him primarily in his capacity as a Rule 30(b)(6) witness. Among other things, Thompson testified about the steps that Plaintiff and Defendants took to comply with ChefsBest licensing policies. Plaintiff has designated Thompson as a potential witness to appear at trial by deposition.
To use Thompson's deposition at trial, Plaintiff must overcome two layers of admissibility problems: first, whether Plaintiff may admit the deposition instead of live trial testimony, and second, whether Plaintiff may admit statements about which the third-party 30(b)(6) witness lacked personal knowledge. The Court addresses each issue in turn.
A. Thompson's Deposition Will be Admissible in Lieu of Live Testimony if Thompson is More than One Hundred Miles from Chicago at the Time of Trial.
Parties at trial generally must prove their cases with live testimony rather than depositions. This general rule is subject to numerous exceptions. Rule 32 of the Federal Rules of Civil Procedure sets forth a standard under which depositions may be used at trial:
At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
Fed. R. Civ. P. 32(a)(1). The parties here do not dispute that Defendants were represented at Thompson's deposition, so the question becomes whether one of the situations listed in Rule 32(a)(2) through (8) will allow Plaintiff to use Thompson's deposition "to the extent it would be admissible under the Federal Rules of Evidence if [Thompson] were present and testifying." One of those listed situations is the deposition of an opposing party's Rule 30(b)(6) witness, but the witness here testified on behalf of a ...