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What? No rehearsal? A Pennsylvania federal judge has ruled that a plaintiff’s attorney is entitled to take two depositions of witnesses — one with a court stenographer followed immediately by a second on video for use at trial. The issue arose when attorney George Bochetto was negotiating with his opposing counsel to take the deposition of movie director Norman Jewison in his libel suit against the producers of “The Hurricane.” The two agreed on one thing — that it would be videotaped so that it could be used during the trial. A dispute arose when Bochetto insisted that he should get two bites at the apple — a non-videotaped discovery deposition followed by a video trial deposition. Bochetto represents Carmine O. Tilelli, a retired boxer from Cherry Hill, N.J., who claims the movie falsely portrays his December 1964 bout with Rubin “Hurricane” Carter as a fixed fight in which racist judges decided against Carter because he is black. But since Jewison is not a defendant in the case, and since he is a Canadian, he cannot be compelled to appear at the trial. Bochetto wanted to make sure that he could put something as close as possible to live testimony before the jury. And to do that, Bochetto insisted, he should be able to conduct a full examination first with a court reporter so that his second examination — shot on video with an eye toward showing it to a jury — would be the sort of performance one expects of a prepared trial lawyer. The attorney for Universal Pictures, Gerson A. Zweifach of Washington, D.C.’s Williams & Connolly, refused, saying the Federal Rules of Civil Procedure dictate that lawyers are ordinarily limited to just one deposition. So Bochetto wrote a letter to U.S. District Judge Eduardo C. Robreno asking for a ruling that allows him to conduct back-to-back depositions. “My burden of proof — that of actual malice — is a significant responsibility. I do not want to clutter my ‘trial examination’ of such witnesses with a lot of discovery questions,” Bochetto wrote. “Mr. Zweifach has opposed this request, stating that I am only entitled to one examination of such witnesses, and if it is cluttered with hours and hours of discovery-type questions, that’s my problem,” Bochetto wrote. Bochetto said he believed that Zweifach was wrong on the law and that the federal courts in Pennsylvania “do recognize a fundamental distinction between discovery depositions and trial depositions.” Zweifach responded with his own letter to the judge that said “witnesses should be deposed once, and the admissibility of testimony obtained in depositions taken under the Federal Rules is governed by Federal Rule 32.” The rule, he said, “does not recognize a category of depositions which are ‘discovery only’ or off the record.” Zweifach said the defendants have made their self-executing disclosures and produced more than 8,200 pages of documents. Under the rules, he said, the parties should now simply take their depositions, and “there is simply no reason here to deviate from the Federal Rules.” Bochetto, he said, “is in effect arguing that he is entitled to take two depositions in any civil case involving out-of-state witnesses, the first ‘off the record,’ the second governed by Rule 32. That is simply not the law.” But Bochetto argued that the Zweifach’s reading of the rules would give the defense an unfair advantage. “Since Mr. Zweifach controls defendants’ witnesses, if he doesn’t like their depositions, he can always choose to produce them live at a trial. I, unfortunately, do not have that same luxury,” Bochetto wrote. Zweifach disputed that point in his letter, saying “the suggestion that I or the named defendants control these witnesses is simply not accurate — most of them are not employees of the defendants and lead independent, professional lives.” In any case, he said, the rules are designed to ensure against unfairness because “if the party offering the testimony is responsible for the witness’s unavailability at trial, that party cannot offer the testimony.” Robreno sided with Bochetto. In a two-page order handed down July 10, Robreno ordered that “Mr. Jewison’s deposition shall be conducted in back-to-back phases.” The first phase will be recorded by a stenographer, the judge ordered, and the second phase will be videotaped. In a footnote, Robreno said his directions should also apply to depositions of other witnesses “who may be unavailable at trial.” Bochetto said he was “very pleased” with the judge’s ruling. “This gives me the opportunity to understand what they [the witnesses] will say before I choreograph the video,” he said.

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