DECISION AND ORDER BACKGROUND This matter has been referred to me for all pretrial matters excluding dispositive motions. (Dkt. 9; Dkt. 156). Fact discovery closed on October 9, 2024, pursuant to the order of Magistrate Judge Marian W. Payson, to whom the matter was then referred. (Dkt. 138). Defendants James Schwartz and Foundry Associates, Inc. (collectively “Defendants”) have moved for leave to take the de bene esse deposition of non-party John E. Riordan (“Riordan”) to perpetuate his trial testimony, because Riordan has recently learned that the cancer he has been battling has “metastasized to other parts of [his] body and…is now Stage IV.” (Dkt. 149-3 at 5). Plaintiff Nanjing CIC International Co., Ltd. (“Plaintiff”) opposes the motion. (See Dkt. 157). For the reasons set forth below, Defendants’ motion is granted.1 DISCUSSION “A de bene esse deposition — sometimes referred to as a ‘preservation’ deposition — is a deposition taken in anticipation of a future need.” Broker Genius, Inc. v. Seat Scouts LLC, No. 17-CV0-8627 SHS SN, 2018 WL 6242226, at *3 (S.D.N.Y. Nov. 29, 2018) (quotation omitted). It serves as “a substitute for live trial testimony and is typically conducted under trial rules of evidence rather than as a discovery deposition.” Shim-Larkin v. City of New York, No. 16-CV-6099(AJN)(KNF), 2018 WL 3407710, at *1 (S.D.N.Y. May 11, 2018) (quotation omitted). A de bene esse deposition may be appropriate where there is reason to believe a witness will not be available at trial. See, e.g., Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003) (de bene esse deposition taken where “it appeared that [an] eighty-year old California resident would not travel to New York for trial”). “There is some disagreement among the district courts in New York whether a de bene esse deposition may proceed after the close of discovery.” Broker, 2018 WL 6242226, at *3. Some courts have concluded that “de bene esse depositions, like depositions taken for discovery purposes, cannot be conducted after the close of discovery absent extenuating circumstances.” Id.; see also, e.g., Bank of Am., NA v. Pushing Grey, No. CV 11-1191 DHR ARL, 2014 WL 7477714, at *1 (E.D.N.Y. Oct. 8, 2014) (“As courts have held, ‘both discovery and de bene esse depositions are governed by the scheduling order set by the Court, and may not be conducted after the close of discovery absent good cause to modify that order.’” (quoting George v. Ford Motor Co., No. 03CIV.7643(GEL), 2007 WL 2398806, at *12 (S.D.N.Y. Aug. 17, 2007)). But other “courts considering this issue have made what can only be described as a federal common law distinction between ‘discovery depositions’ and ‘trial depositions’…and have held the latter category permissible even after the discovery deadline has passed.” RLS Assocs, LLC v. United Bank of Kuwait PLC, 01 Civ. 1290(CSH), 2005 WL 578917 at *6 (S.D.N.Y. Mar. 11, 2005); see also Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, No. 03CIV.5560(RMB)(HBP), 2008 WL 5423316, at *2 (S.D.N.Y. Dec. 31, 2008) (concluding that in light of the conflict in the case law and the lack of guidance from the Second Circuit, “it seems inappropriate to penalize a practitioner for being unable to guess correctly how a particular judicial officer would decide the issue,” and thus the court “would be inclined to permit plaintiffs (and, of course, defendants) to conduct de bene esse depositions after the discovery deadline”). The Court need not resolve this conflict here, because it concludes that Defendants have demonstrated good cause for modifying the Court’s scheduling order under Federal Rule of Civil Procedure 16(b)(4), and that the circumstances warrant permitting them to take Riordan’s de bene esse deposition. “[A] finding of ‘good cause’ depends on the diligence of the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). Courts have found good cause to modify a scheduling order to allow for a de bene esse deposition where “a witness whose testimony [the moving party] wishes to present during the trial of [the] action, has a serious medical condition that may make [the witness] unavailable to attend and testify at the trial of the action.” Shim-Larkin, 2018 WL 3407710, at *1. Riordan’s Stage IV metastatic cancer is a serious medical condition that can reasonably be expected to make him unavailable to attend and testify at any trial in this action, particularly in light of the stage of the proceedings (i.e. that trial is not likely to be scheduled any time in the near future). Further, Defendants have acted diligently in seeking his de bene esse deposition. Defendants learned of the change in Riordan’s prognosis on December 11, 2024. (Dkt. 149-3 at 6). Two days later, on December 13, 2024, Defendants’ counsel contacted Plaintiff’s counsel to request a de bene esse deposition of Riordan. (Dkt. 157-2 at 2-3). Plaintiff’s counsel refused the request, and Defendants’ counsel filed the instant motion on December 19, 2024, less than a week later. (Dkt. 149). Under the circumstances, Defendants’ conduct was diligent. In addition, “[w]hen a party opposes a trial deposition scheduled after the close of discovery…[,] [s]pecial emphasis should be placed on the potential for prejudice.” Morales v. New York Dep’t of Lab., No. 06-CV-899 MAD, 2012 WL 2571292, at *2 (N.D.N.Y. July 3, 2012) (quotation omitted). Plaintiff does not argue that it will suffer any prejudice if Defendants are permitted to take a de bene esse deposition of Riordan. On the other hand, it is clear that Defendants will be prejudiced if Riordan passes away before trial (or is in such fragile health that he is unable to travel), and they are unable to present his testimony. Defendants have persuasively explained why Riordan is an important witness in this case. (See Dkt. 149-1 at
