Benjamin J. GOSS, Plaintiff, v. JLG INDUSTRIES, INC., Defendant 10-CV-058S United States District Court, W.D. New York Signed October 21, 2012 Filed October 22, 2012 Counsel Michele A. Braun, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Plaintiff. Skretny, William M., United States District Judge DECISION AND ORDER *1 1. There are two motions currently pending in this diversity lawsuit. First, Defendant, JLG Industries, Inc. (“JLG”) seeks to compel General Motors, LLC (“GM”), to permit the videotaping of a scissor lift, which is currently located at a local GM (formerly Delphi Harrison Thermal Systems) plant. The lift is at the center of this litigation: Plaintiff, Benjamin Goss, alleges that it malfunctioned and electrocuted him. Second, JLG seeks to exclude the testimony of Goss' expert, Dr. Ronald Reiber. Each motion will be discussed in turn. 2. Considering first the motion to compel, Goss objects and argues that a subpoena is improper at this time because discovery has closed and JLG could have videotaped the lift during one of the many previous inspections it undertook.[1] 3. JLG responds by arguing that it is not restricted by the discovery scheduling order because it issued a trial subpoena under Federal Rule of Civil Procedure 45, not a more general discovery request under Rule 26. 4. In pertinent part, Rule 45 provides that “a command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial.” A trial subpoena is appropriate “in certain circumstances, ... such as for securing original documents previously disclosed during discovery or for purposes of memory recollection or trial preparation.” Malmberg v. United States, 2010 U.S. Dist. LEXIS 28784, at *7 (N.D.N.Y. Mar. 24, 2010) (citing Revander v. Denman, No. 00 Civ. 1810, 2004 WL 97693, at *1 (S.D.N.Y. Jan. 21, 2004)). 5. Here, JLG represents that it will use the videotape for cross-examination purposes. This was enough for the court in Malmberg, which found that “because Defendant intends to use the documents it has requested in these subpoenas for cross-examination and impeachment only, they are properly classified as trial subpoenas.” 2010 U.S. Dist. LEXIS 28784 at *7. Although “Rule 45 trial subpoenas may not be used ... as means to engage in discovery after the discovery deadline has passed,” see Dodson v. CBS Broad., Inc., No. 02 CIV. 9270(KMW)(AJ), 2005 WL 3177723, at *1 (S.D.N.Y. Nov. 29, 2005) (citations omitted; brackets in original), JLG has not requested the production of additional documents or items. Rather, it seeks to videotape the lift in lieu of producing it at trial. As such, given the subpoena's limited scope, this is a valid use of Plaintiff's subpoena power under Rule 45. See Joseph P. Carroll Ltd. v. Baker, No. 09 CIV. 3174 SHS, 2012 WL 1232957, at *3 (S.D.N.Y. Apr. 12, 2012) (“Because this is a trial subpoena which is limited in scope and will not lead to additional discovery or delay the trial date of this action, the request to quash the subpoena is denied.”). *2 6. Goss' proposed authority to the contrary—where courts have found Rule 45 subpoenas improper because discovery had closed—does not compel a different result. In Rice v. United States, for example, the subpoena sought various documents, including “medical records, school records and Social Security records.” 164 F.R.D. 556, 556–57 (N.D. Okla. 1995). And in Dodson, the subpoena sought “10 categories of documents.” 2005 WL 3177723, at *1. The much more circumscribed nature of the subpoena at issue here is indisputable. Accordingly, JLG's motion to compel is granted. 7. The Second matter before this Court is JLG's motion to exclude the expert testimony of Dr. Ronald Reiber, an economist. According to JLG, in May of 2012, it learned that Goss “had retained an economist, Ron Reiber, to perform an economic loss calculation for this matter.” (Def.'s Mem. in Supp. of Mot. to Exclude, at 8; Docket No. 62-1.) It seeks to exclude his testimony because Goss did not disclose him as an expert during discovery. But Goss represents that he has not yet retained Dr. Reiber for the purpose of trial. Unless Goss chooses to do so, that is, unless he chooses to offer him as an expert witness for trial testimony, disclosure is not required. SeeFed. R. Civ. P. 26(a)(2) (“[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence”) (emphasis added). 8. Complicating matters somewhat, Goss does not claim that he definitely will not call Dr. Reiber. His response leaves that possibility open: “to date [,] Plaintiff has not retained Dr. Reiber to testify.” (Pl.'s Mem. in Opp. to Mot. to Exclude, at 3; Docket No. 74) (emphasis added). But this Court will not rule on JLG's motion under what is presently a hypothetical scenario where Goss offers Dr. Reiber's testimony at trial. JLG's motion is therefore denied; it is free, however, to bring another such motion if the circumstances change. * * * * IT HEREBY IS ORDERED, that Defendant's Motion to Compel (Docket No. 56) is GRANTED. FURTHER, that Defendant's Motion to Exclude the Expert Testimony of Dr. Ronald Reiber (Docket No. 62) is DENIED. Footnotes [1] Neither party addresses whether Goss has standing to object to this subpoena, which was issued to a third-party, GM. SeeMcNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995) (“The general rule is that a party does not have standing to object to a subpoena issued to a third-party witness unless the movant has alleged some personal privacy right or privilege to the documents sought.”) This issue, however, is moot since the subpoena is properly issued.