Williams v. Johnson
278 F.R.D. 1
D.D.C.2011Background
- Williams sues DC under the Whistleblower Protection Act alleging retaliation by the District and two DC officials, Johnson and Anthony.
- Anthony was Johnson’s Chief of Staff; the District sought to use Anthony’s deposition at trial as an unavailable witness under Rule 32(a)(4)(D).
- Trial began November 16, 2011; the issue was whether the District had exercised reasonable diligence to procure Anthony’s attendance by subpoena.
- Court directed parties to identify witnesses likely to testify and to arrange availability, including subpoenas, prior to trial.
- District made informal communications with Anthony after September 13, 2011 but did not subpoena him until November 8, 2011, well after the court’s directive.
- The District conducted several subpoena attempts in the days surrounding trial but never established timely, effective service and yielded no live testimony from Anthony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the District exercised reasonable diligence to procure Anthony by subpoena. | Williams argues Anthony was not unavailable due to diligence failure. | District contends it attempted service and should be allowed to use deposition if Anthony is unavailable. | District failed to exercise reasonable diligence; deposition precluded. |
| Whether informal attempts to contact Anthony can satisfy Rule 32(a)(4)(D). | Williams contends informal efforts are insufficient to show diligence. | District argues informal contacts may support diligence if later supplemented by subpoenas. | Informal efforts do not satisfy diligence, especially when not paired with timely subpoenas. |
| Whether waiting eight days before trial to subpoena Anthony was reasonable diligence. | Williams contends late subpoena is unreasonable under court orders. | District asserts attempts were ongoing and appropriate timing given circumstances. | Not reasonable; timing indicates failure to promptly procure attendance. |
Key Cases Cited
- Thomas v. Cook Cnty. Sheriff's Dep’t, 604 F.3d 293 (7th Cir. 2010) (reasonable diligence standard for Rule 32(a)(4))
- Angelo v. Armstrong World Indus., Inc., 11 F.3d 957 (10th Cir. 1993) (reasonable diligence required for unavailable witness)
- Moore's Federal Practice, 7-32 (not a case) (government treatise guidance on Rule 32)
- Griman v. Makousky, 76 F.3d 151 (7th Cir. 1996) (trial court broad discretion on Rule 32(d) applicability)
- Lear v. Equitable Life Assurance Soc. of U.S., 798 F.2d 1128 (8th Cir. 1986) (deference to trial judge on usefulness of deposition testimony)
- United States v. Tchibassa, 452 F.3d 918 (D.C. Cir. 2006) (deference to district court's diligence assessment)