The plaintiff brought suit under 42 U.S.C. § 1983 and Indiana’s wrongful-death statute. She received a small judgment under the latter statute but her principal claim, the 1983 claim, was dismissed because the judge would not let her introduce in evidence the deposition of a crucial witness, and she appeals.
The plaintiffs decedent, Griman, had died while an inmate of a county jail. The claim that was dismissed charged that his death had been due to deliberate indifference to his medical needs on the part of the defendants, employees of the jail. The plaintiffs key witness was a fellow inmate of Griman’s named Hunt. The plaintiffs lawyer took Hunt’s deposition in June of 1993, at which time Hunt was still an inmate of the jail. In his deposition Hunt said that he had told a nurse (one of the defendants), only hours before Griman died, that Griman was ill and needed medication. This evidence was essential to prove deliberate indifference, a sine qua non of liability.
Pursuant to an order by the district court that tracked the new Fed.R.Civ.P. 26(a)(1) (“Initial Disclosures”), the defendants had listed Hunt as an individual likely to have information bearing significantly on the claims or defenses in the case. The order required the defendants to give not only the individual’s name but also, “if known, [his] address or telephone number.” The defendants gave Hunt’s address as the jañ and his phone number as the jail’s phone number. The order also required each party “seasonably to supplement its [initial] disclosure ... to include information thereafter acquired, if the party learns that the information disclosed is not complete and correct.” Cf. Fed.R.Civ.P. 26(e)(1). On April 29,1994, the defendants supplemented their initial disclosures with a new list. The new list included Hunt among “inmates incarcerated at the Elkhart County Jail,” again giving the jail’s address and phone number, and added: “Last known address is the Elkhart County Jail, unless noted otherwise below.” There was no such note next to Hunt’s name. Yet Hunt had been released from the jail on January 1, 1994. Whether any of the defendants who remain in the case, or their lawyers, knew this (the Sheriffs department, which operates the jail, and was in April 1994 a defendant and was represented by the same lawyers who represent the individual defendants, knew), and whether Hunt was
The trial began on June 6, 1994. On the second day the plaintiffs counsel handed the defendants’ counsel a sheaf of subpoenas for persons, including employees of the Sheriffs department and inmates of the jail, whom the plaintiffs counsel wanted to call as witnesses. One of the subpoenas was for Hunt. When informed that he was no longer in the jail, the plaintiffs counsel began frantic efforts to find him. At his deposition Hunt had given the address in South Bend to which he expected to return when he was released, and it was there — his grandmother’s house — that the search began. Hunt was not at his grandmother’s house, and she did not know where he was though she thought he might be on the way back from Memphis. She had his beeper number, but he did not respond. Unable to find Hunt despite strenuous efforts, the plaintiffs counsel moved to be allowed to introduce Hunt’s deposition in evidence in lieu of his testifying in person. The judge denied the motion.
Rule 32 of the Federal Rules of Civil Procedure provides that the deposition, of a witness may be used at trial for any purpose if, so far as bears on this case, the witness is more than 100 miles from the place of trial (Fed.R.Civ.P. 32(a)(3)(B)), or “the party offering the deposition has been unable to procure the attendance of the witness by subpoena” (subsection (D)), or “such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used” (subsection (E)). Since Memphis is more than 100 miles from South Bend, subsection B provided a possible basis for the admission of Hunt’s deposition. The plaintiffs counsel mentioned subsection (B) to the district judge but did not pursue the matter and has not raised it on appeal, so it is waived.
Let us jump to subsection (E). Given the strong preference of Anglo-American courts for live testimony, especially in a case that turns on the credibility of testimony contradicted by other witnesses,
Loinaz v. EG & G, Inc.,
Even “serious prejudice” from the exclusion of a deposition has been held not to be an exceptional circumstance in and of itself.
Angelo v. Armstrong World Industries, Inc.,
That . leaves subsection (D), on which the plaintiffs counsel places the weight of his argument. He argues that the defendants misled him into thinking that Hunt was still in jail and as a result made it impossible for him to procure his attendance by subpoena. So the judge might indeed have found; the question is whether he was obliged to find it, that is, whether he acted unreasonably (“abused his discretion”) in not finding it. For a party to be “unable” to procure a witness’s attendance at trial by subpoena implies that the party used reasonable diligence to get him to attend,
Rascon v. Hardiman,
No doubt if on January 1 or April 29 the defendants had informed the plaintiffs lawyer that Hunt had been released, the lawyer would have made an effort to find him and we may assume for purposes of argument that the effort would have been crowned with success. But we do not even know whether the defendants knew that Hunt had been released; the plaintiffs counsel made no effort to show that they had known or should have known. Recordkeeping in the criminal justice system and communication among its components often are poor, and we have already seen that it would be unreasonable to assume instant communication of the news of Hunt’s release to the trial team in Griman’s case. Even if the plaintiffs counsel was, as he no doubt was, lulled into believing on April 29 that Hunt was still in jail on or shortly before that day, this was no reason for him to assume that Hunt would still be there in June. The plaintiffs counsel acknowledged at the argument that the expense of issuing and serving subpoenas is trivial, giving point to the advice that “in the case of witnesses, an irreducible ritual should be followed: the witness must be subpoenaed.” 1 James W. Jeans, Sr.,
Litigation
§ 5.04-1 (2d ed. 1992). Counsel had no excuse to wait until the second day of trial to attempt to serve the subpoena on Hunt. The need to keep in touch with one’s witnesses before trial is elementary, Thomas A. Mauet,
Fundamentals of Trial Techniques
393 (3d ed. 1992), and takes on added importance
We are given some pause by the district judge’s having said (twice) that it would be an abuse of his discretion to grant the motion to permit Hunt’s deposition to be used as evidence. Read literally that is a denial of the possession of discretion rather than an exercise of discretion. But Judge Miller is an able and experienced district judge, and we do not think these slips of the tongue should be taken as demonstrating that he failed to make a discretionary judgment. He also said that “the interest of justice would favor the use of the Hunt deposition”; but “interest of justice” is not the test, so his refusal to.allow the use of the deposition on this basis cannot be faulted. More to the point, he said “I am not persuaded that that sort of diligence that has been shown in the last day [when the plaintiffs counsel was making frantic efforts to locate Hunt] would not have been productive had it been attempted earlier.” The plaintiffs counsel had not done as much as he could and should have done to ensure the presence of his key witness at trial. He had disabled himself from procuring the witness’s presence by subpoena. Having due regard to the prejudice to the defendants from not being able to confront at trial the principal witness against them, the judge was not required to forgive the lawyer’s default.
Affirmed.