Zhang v. County of Monterey

Background

Jacqueline Zhang designated portions of Mark Mariscal’s deposition transcript for use at trial. The defendants—County of Monterey, Monterey County Resource Management Agency, and Monterey County Parks Department—objected. They argued that Mariscal was not a party, was no longer employed by the County when he was deposed, and would be available to testify at trial.

The court’s analysis

Federal Rule of Civil Procedure 32 allows a deposition to be used against a party only if specified conditions are met, including that the use would be permitted under the Federal Rules of Evidence and the relevant portions of Rule 32.

Zhang first argued that Mariscal’s deposition could be used because he was unavailable under Rule 32(a)(4), which can permit deposition use when a witness is more than 100 miles from the trial location. The court noted that Mariscal would testify remotely and live at trial, and that he would be subject to cross-examination. The court concluded that remote testimony did not make him unavailable under Rule 32(a)(4). The court also noted that other witnesses were scheduled to testify remotely during the COVID-19 pandemic and would likewise testify live and be subject to cross-examination.

Zhang alternatively argued that the transcript could be used as the deposition of a party under Rule 32(a)(3), or as a party admission under Federal Rule of Evidence 801(d)(2)(A) or (C). The court rejected those arguments because Mariscal was not a party and, when deposed, was no longer the County’s officer, director, managing agent, or designated representative. For the same reason, the court concluded that his testimony was not an admission of a party under the cited evidence rules.

Ruling

Judge Lucy H. Koh sustained the defendants’ objection to Zhang’s designations of Mariscal’s deposition transcript. The order did not decide the underlying claims in the case; it addressed whether the transcript could be used under the cited deposition and evidence rules.