Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:05-cv—00160-KAJ—MPT Document 92 Filed 02/10/2006 Page1 of3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NOVOZYMES A/S, )
Plaintiff, g
v. g Civil Action No. 05-160-KAJ
GENENCOR INTERNATIONAL, INC. and g
ENZYME DEVELOPMENT CORPORATION, )
Defendants. )
MEMORANDUM ORDER
I. INTRODUCTION
This is a patent infringement case brought by Novozymes A/S ("Plainitff") against
Genencor International, Inc. and Enzyme Development Corporation (collectively,
"Defendants"). Before me now is Defendants’ motion in Iimine (Docket Item ["D.I."] 85
at 132-33; the "Motion") seeking to preclude Plaintiff from offering the deposition
testimony of an expert whose declaration was used to support Defendants opposition
to Plaintiff’s motion for a preliminary injunction. For the reasons that follow the Motion
will be denied.
II. BACKGROUND
In their opposition to Plaintiff’s motion for a preliminary injunction, Defendants
offered the declaration of Dr. Gregory Zeikus. (ld. at 132.) Plaintiff took Zeikus’s
deposition on the subject of that declaration. (ld. at 134.) While Defendants no longer
wish to use Zeikus’s testimony at trial (id. at 132), Plaintiff wants to use his deposition

Case 1:05-cv—00160-KAJ—lV|PT Document 92 Filed 02/10/2006 Page 2 of 3
testimony (id. at 134). According to Defendants, that out—of—court testimony is hearsay.
(Id. at 132-33.)
Ill. DISCUSSION I
"Statements made during deposition testimony that are offered at trial to prove
the truth of the matter asserted are hearsay." Aubrey Rogers Agency, Inc. v. AIG Life
Ins. Co., Civ. A. 97-529, 2000 VVL 135129, at *1 (D. Del. Jan. 13, 2000) (citing Fed. R.
Evid. 801(c)). However, Federal Rule of Civil Procedure 32 provides an exception to
the hearsay rule. United States v. Vespe, 868 F.2d 1328, 1339 (3d Cir 1989). Rule 32
states:
[A]ny part or all of a deposition, so far as admissible under the rules of
evidence applied as though the witness were then present and testifying,
may be used against any party who was present or represented at the
taking of the deposition or who had reasonable notice thereof ....
Fed. R. Civ. P. 32(a). The language requiring the rules of evidence to be applied as
though the witness were then present and testifying was added in a 1970 amendment
to eliminate the "possibiIity of certain technical hearsay objections which are based, not
on the contents of deponent‘s testimony, but on his absence from court." Advisory
Committee Note to the 1970 amendment of Fed. R. Civ. P. 32. Thus, "RuIe 32(a)
creates of its own force an exception to the hearsay ruIe." Wright, l\/liller & Marcus,
Federal Practice and Procedure: Civil 2d § 2143. See I/espe, 868 F.2d at 1339.
According to Rule 32:
The deposition of a witness. . . may be used by any party for any purpose
if the court finds . . . that the witness is at a greater distance than 100
miles from the place of trial or hearing . . . unless it appears that the
absence of the witness was procured by the party offering the deposition .
2 .

Case 1:05-cv—00160-KAJ—lV|PT Document 92 Filed 02/10/2006 Page 3 of 3
Fed. R. Civ. P. 32(a)(3) & (a)(3)(B). Here, Defendants do not rebut the assertion that
Zeikus resides in Michigan, which is more than 100 miles from the trial location. (D.I.
85 at 134 n.17.) Furthermore, there is no assertion that Plaintiff procured Zeil absence. Indeed, Defendants themselves chose this distant witness.
Defendants argument appears to rest entirely on the assertion that Federal Rule
of Evidence 801 (d)(2) does not operate to make Zeikus’s testimony non-hearsay. (ld.
at 132-33 (citing Kirk v. Raymark indus., lnc., 61 F.3d 147, 163-65 (3d Cir. 1995);
Pltzer, lnc. v. Ranbaxy Labs., Ltd., No. Civ.A. 03-209, 2005 WL 2296613, at *1-*2 (D.
Del. Sept. 25, 2005); Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422, 422-
25 (Fed. Cl. 1997).) Because Federal Rule of Civil Procedure 32 creates its own
exception to the hearsay rule, that assertion is irrelevant.
Therefore., I conclude that Rule 32(a)(3)(B) applies here, and Plaintiff may use
Zeikus’s deposition testimony in accordance with that Rule.
IV. CONCLUSION
Accordingly, it is hereby ORDERED that the Motion is}DENIE .
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UN. STATES D§TRICjI' JUDGE
February 10, 2006 I M
Wilmington, Delaware
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