Local Rule Rule 26.4: De Bene Esse Depositions

Rule 26.4. De Bene Esse Depositions

(a) Without leave of Court De bene esse depositions shall be taken within the discovery deadlines established in the action. A de bene esse deposition taken solely for the purpose of authenticating records may be taken after the discovery deadline without leave of Court if the deposition is taken more than 28 days before the date scheduled for the start of the trial (or trial period, if applicable).

(b) With leave of Court. Except as provided in subsection (a) de bene esse depositions require leave of Court. A party seeking leave of Court to take a de bene esse deposition shall have the burden of establishing to the Court's satisfaction that leave should be granted. Factors the Court may consider in determining whether or not leave should be granted include, without limitation, the following:

(1) the importance of the witness' testimony to the movant's case;

(2) the effect of allowing the deposition on the other parties to the case, including upon their preparation for trial;

(3) the effect of allowing the deposition upon the administration of justice;

(4) whether the witness' lack of availability for trial was unexpected or known prior to the close of discovery; and

(5) whether the inability to compel the witness's testimony via subpoena was unexpected or known prior to the close of discovery.

(c) Expenses. In the interest of fairness, the Court may require the moving party to pay the expenses and fees of the non-moving party(ies).

(d) Offer of Testimony. A party who obtains leave of Court to take a de bene esse deposition may not offer live testimony from that witness in any part of its case; however, the moving party is not precluded from cross-examining the witness should another party offer live testimony from the witness.