Order | Filed: October 04, 2026
| Entered: October 04, 2026
LEAHY v. COMPASS DMV, LLC et al
Personal Property: Other | District Of Columbia
Order on Motion to Take Deposition Order on Motion for Leave to File
MINUTE ORDER (paperless) DENYING defendants' 75 Joint Motion for Leave to Take Videotaped De Bene Esse Deposition of Defendant Bennie Lee Coates, Jr. ("Defs.' Mot."); and DENYING plaintiff's 81 Motion for Leave to File Sur-Reply. Defendants seek a "videotaped de bene esse deposition of Defendant Bennie Lee Coates Jr.&nbsp.&nbsp.&nbsp. for use at the trial of this matter." Defs.' Mot. &para 1. Coates, who was previously deposed on March 26, 2026, "is in very poor health," "is now confined to a wheelchair," "has already lost most of his vision and is rapidly losing his remaining eyesight," "does not know when he will be released" from a rehabilitation facility, and likely "will not be able to attend trial." Id. &para&para 3-5, 7.
When a witness has already been deposed in a case, the requesting party must seek leave of court to depose the witness a second time. Fed. R. Civ. P. 30(a)(2)(A)(ii). In exercising the court's "broad discretion in structuring discovery," Hussain v. Nicholson, 435 F.3d 359, 363 (D.C. Cir. 2006) (citation omitted), leave to take a second deposition is guided by Rule 26(b)(1) and (2), see Fed. R. Civ. P. 30(a)(2), including consideration of whether "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; [and] (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action," id. 26(b)(2).
"The rationale for a de bene esse deposition [] is generally to preserve testimony in danger of being lost." Johnson v. Wash. Metro. Area Transit Auth., No. 86-cv-3110, 1993 WL 37445, at *1 (D.D.C. Feb. 3, 1993) (citations omitted); see In re Nat'l Prescription Opiate Litig., No. 21-cv-3041, 2021 WL 3777638, at *1 (6th Cir. Jan. 12, 2021) (per curiam order) ("Preservation depositions, however, also known as de bene esse depositions, are 'provisional examination[s] of a witness whose testimony is important and might otherwise be lost, for use at trial in case the witness is unable to attend in person at the time or cannot be produced.'" (citation omitted and alteration in original)). When, as here, a witness's testimony has already been taken in a deposition, the danger of testimony being lost is not present but the reasons for limiting the requested discovery as "unreasonably duplicative" after "ample opportunity to obtain the information," Fed. R. Civ. P. 26(b)(2), are particularly strong.
Defendants provide no reason why the testimony Coates now has to offer is different from what he did or could have offered at his March 2026 deposition. See Defs.' Mot.; Defs.' 79 Reply to Pl.'s Opp'n to Defs.' Joint Mot. The only explanation defendants suggest for the need for a second deposition is to preserve the ability of "the Judge and jury to observe the witness's demeanor, tone, and credibility, which cannot be conveyed through a written transcript." Defs.' Mot. &para 7. In plaintiff's words, "[m]ovants' desire to re-package [Coates's] testimony as a videotaped trial presentation, a potentially more persuasive format given Bennie's credibility issues, does not establish a basis for a second deposition." Pl.'s 77 Opp'n to Joint Mot. for Leave to Take Videotaped De Bene Esse Dep. of Def. Bennie Lee Coates, Jr. at 4. The Court agrees with plaintiff that what defendants "seek is simply a videotaped version of that testimony" but "[t]he purpose of a de bene esse deposition is not to provide a visual aid." Johnson, 1993 WL 37445, at *1 (D.D.C. Feb. 3, 1993) (denying request for de bene esse deposition after party had already been deposed).
Accordingly, defendants' motion for leave to take videotaped de bene esse deposition is denied, and, because additional briefing is not required to resolve defendants' motion, plaintiff's motion for leave to file a sur-reply is also denied.
Signed by Judge Beryl A. Howell on October 4, 2026. (lcbah4)