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Rao v. Rodriguez

United States District Court, E.D. New York

May 1, 2017

DR. ADDAGADA C. RAO, Plaintiff,
v.
RAMON RODRIGUEZ and WYCKOFF HEIGHTS MEDICAL CENTER, INC, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS United States District Judge

         In this action, Plaintiff Dr. Addagada C. Rao asserts that Defendants Ramon Rodriguez and Wyckoff Heights Medical Center, Inc. ("Wyckoff'), discriminated against him on the basis of race, national origin, and age in violation of federal, state, and municipal law. (See Compl. (Dkt. 1).) The court assumes the parties' familiarity with the factual and procedural background of this action. Plaintiff has submitted an application (the "Application") to introduce prior deposition testimony of non-party Dr. Frank Lepore (the "Lepore Deposition") on the basis that he is unavailable to testify. (See Apr. 25, 2017, Min. Entry; see also Sutak Aff. in Supp. of Appl. ("Sutak Aff.") (Dkt. 124).) For the reasons set forth below, the Application is GRANTED. The court RESERVES RULING on Defendants' proffered objections as to probative value and potential prejudice.

         I. PLAINTIFF'S APPLICATION

         The Lepore Deposition was taken under subpoena in a separate action, Dr. John C. Riggs v. Wyckoff Heights Medical Center, Inc., Ramon Rodriguez, and Gary Goffner, Sup. Ct. Kings County Index No. 9229-2013 (Vaughan, J.) (the "Riggs Action"). (Sutak Aff. ¶ 1.) Plaintiffs seek to use the Lepore Deposition as evidence of (1) Lepore's personal knowledge of a letter sent by Riggs to the Wyckoff Board of Trustees about Rodriguez's conduct as Wyckoff s CEO (the "Riggs Letter"); and (2) Lepore's personal knowledge of Rodriguez's alleged comments about an "Indian Mafia" and "House of Arya" among Wyckoff s medical staff (the "Rodriguez Comments"). (Id. ¶ 8.)

         Plaintiff submits that Lepore "presently resides or maintains an office" in Florida (id. ¶ 4), and that Lepore has not consented to testify despite several requests by Plaintiff and the issuance of a subpoena (id. ¶¶ 4-5). Defendants argue that the Lepore Deposition is not admissible under either Federal Rule of Civil Procedure ("FRCP") 32 or Federal Rule of Evidence ("FRE") 804, and further, that the Lepore Deposition should be precluded under FRE 403. (Defs. Resp. to Appl. ("Defs. Resp.") (Dkt. 129).)

         II. DISCUSSION

         The court finds that the Lepore Deposition is not admissible under FRCP 32, but is admissible under FRE 804. The court reserves ruling on Defendants' objection under FRE 403.

         A. Federal Rule of Civil Procedure 32

         1. Legal Standard

         FRCP 32(a)(8) governs depositions "taken in an earlier action":

A deposition lawfully taken ... in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence.

Fed. R. Civ. P. 32(a)(8); see also id. r. 32(a)(1) (permitting the use of a deposition at trial when "the use is allowed by Rule 32(a)(2) through (8)").

         2. Analysis

         The court agrees with Defendants that the Lepore Deposition is not admissible "as if taken in the [present] action" because the Riggs Action does not involve "the same subject matter between the same parties." Id. r. 32(a)(8) (emphasis added). (See also Defs. Resp. at 1.) Plaintiff is ...


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