Nonetheless, that opportunity comes with risks as well as advantages, and potential constitutional analysis, which litigants must be prepared to evaluate when deciding whether to petition the court for permission to present virtual testimony or conduct remote trials.In federal court, the use of remote video testimony at trial is governed by Federal Rule of Civil Procedure 43(a) (“Rule 43(a)”). Under Rule 43(a), “witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, [the Federal Rules of Civil Procedure], or other rules adopted by the Supreme Court provide otherwise.

ess will appear voluntarily or is within the court’s subpoena power, do not simply assume that “good cause and compelling circumstances” for remote testimony exist. As the Ninth Circuit put it, “[w]e are bound by the text of the rules.”In re Kirkland, 75 F.4th 1030 (9th Cir. 2023).[2] See Fed. R. Civ. P. 45(c).See Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment (“Because Rule 45(c) directs that compliance may be commanded only as it provides, these amendments resolve a split in interpreting Rule 45’s provisions for subpoenaing parties and party officers. Compare In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans), with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008) (holding that Rule 45 did not require attendance of plaintiffs at trial in New Orleans when they would have to travel more than 100 miles from outside the state).”).See Fed. R. Civ. P. 43(a). Draft Minutes, Civil Rules Advisory Committee (Oct. 20 and 21, 1994).Id.Id. Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment.See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., Case No. 17-md-2785-DDC-TJJ, 2021 WL 2822535, at *4 (D. Kan. July 7, 2021) (“If the rule functioned as plaintiffs propose, the court would obviate the limitations that Rule 45 places on a court’s subpoena power.”); Broumand v. Joseph, No. 20-cv-9137 (JSR), 2021 WL 771387, at *10 (S.D.N.Y. Feb. 27, 2021) (“[A]ny other reading would render Rule 45(c) geographical limitations a nullity and bestow upon any arbitrator sitting anywhere in the country the unbounded power to compel remote testimony from any person residing anywhere in the country”).See, e.g.,United States v. $110,000 in U.S. Currency, Case No. 21 C 981, 2021 WL 2376019, at *3 (N.D. Ill. June 10, 2021); In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2017 WL 2311719, at *4 (E.D. La.

ilated spaces,” and “[a]void non-essential travel.”Not good enough, according to the Dubuc court. The court said that the plaintiff’s assertions fell “far short of demonstrating good cause to require that her deposition be conducted by videoconference.” The court said it was sympathetic to the defendant’s desire to conduct the deposition in person, in view of the facts that potentially $2 million in damages were at stake and the plaintiff had requested a jury trial.“It shouldn’t come as any great surprise to plaintiff that defendant and its counsel want an opportunity to be ‘up close and personal’ when they assess what kind of witness she might make if this case ever gets to a jury,” the court remarked. It ordered the deposition to be conducted in person but in accordance with CDC guidelines for indoor gatherings.The federal rule applicable to obtaining judicial permission for presenting remote video testimony instead of in-person testimony is even less hospitable to remote testimony. Federal Rule of Civil Procedure 43(a) authorizes trial courts to “permit testimony in open court by contemporaneous transmission from a different location” upon a finding of “good cause in compelling circumstances.”A very recent case, BluestarExpo Inc.v. Enis, No.21-20875-Civ-Scola (S.D. Fla., Oct.17, 2022), explained that a compelling circumstance is an unexpected circumstance — an accident or illness that prevents the witness from traveling to the courthouse. In Bluestar Expo, the compelling circumstance proffered by the plaintiff was that two of its witnesses simply refused to travel from their homes (upstate New York, and Turkey) to the Southern District of Florida. Mere inconvenience doesn’t satisfy Rule 43(a), the court held. “The difficulties in procuring in-person testimony here were all reasonably foreseeable,” it said.But States Encourage Greater Use of Remote DepositionsIn contrast to federal courts, several state courts are in fact relaxing the required showings of good cause to conduct a deposition remotely o

estify by videoconferencing based on (1) circumstances surrounding the COVID-19 pandemic, and (2) their out-of-state residences. One of the witnesses was plaintiffs’ economic expert, who plaintiffs asserted is immunocompromised.This case arose out of events taking place onboard Delta Air Lines Flight 1860 from Pittsburgh International Airport to Hartsfield-Jackson Atlanta International Airport. Prior to boarding, the individual defendant visited the TGI Fridays located in the Pittsburgh airport, where he became intoxicated. Defendant passed out after getting on the flight and was seated next to plaintiff J.D. – who was traveling on official government duty in her capacity as an armed law enforcement officer. Defendant woke up before descent and assaulted plaintiff. After landing, with help from Delta employees and the Atlanta Police Department, defendant was arrested. Defendant pleaded guilty to federal assault charges and plaintiffs commenced a civil action seeking to recover damages.Federal Rule of Civil Procedure 43(a) provides that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” (emphasis added). The court noted that in-person proceedings are strongly favored because, inter alia, live testimony enhances the fact finder’s ability to assess the credibility of witnesses.The court denied the plaintiffs’ motion in limine with regard to the non-expert witnesses, who are residents of Georgia, Tennessee, South Carolina, and Florida. The court noted that Rule 43(a) “does not contemplate inconvenience or distance as alone constituting good cause.” The court also flatly rejected plaintiffs’ Covid-19 arguments. The court explained its view that “[t]he world, the country, and the Court are not in the same position as in early 2020 when video technology first came into use in response to the pandemic.” Citing to the lifting of the state of emergency in Pennsylvania and the avail

While they can have some drawbacks, virtual depositions, hearings, and trials offer cost and time savings, and people today are increasingly familiar with video streaming platforms and protocols.So what does that mean for your remote witness or client? Simply sending your client or witness a remote meeting link and having them hop on their laptop or smartphone won’t cut it —there are unique challenges to positioning your witness to effectively tell their story and make themself understood in a virtual environment.What Is a Remote Testimony?Remote witness testimony simply refers to a witness participating in a live legal proceeding held virtually rather than in-person.While the pandemic forced change faster than the legal industry was accustomed to, remote testimony wasn’t invented in 2020. Under Federal Rule of Civil Procedure 30(b)(4): “parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” (1)As for trial testimony, the Federal Rule of Civil Procedure 43(a) guides the court to “permit testimony in open court by contemporaneous transmission from a different location” when there is “good cause in compelling circumstances and with appropriate safeguards.”Is Remote Testimony Always Recorded?Remote testimony refers specifically to live streaming—not to a video or audio-recorded testimony.Just as in an on-site proceeding, a court reporter is required to capture a verbatim record and produce an accurate transcript. Oftentimes, a legal videographer is also present along with the court reporter to create a video record of the proceeding.For a video deposition, the use of streaming technology does not provide blanket intent or notification to make an audio or video record supplemental to the transcript. Even if a deposition is taken remotely, the virtual deposition notice must still indicate: (2)By what means the deposing attorney intends to record it, andIf they reserve the right to present the recording at trial.Can You Testify over Zoom?In shor

United States District Judge Thomas Ludington of the Eastern District of Michigan, Northern Division, recently granted a joint motion to testify remotely sua sponte reasoning that “strange winter conditions and unknown technological issues have made state-to-sate travel as unpredictable as recent as yesterday” provided the compelling circumstances Fed. R. Civ. P. 43(a) requires.In Kanuszewski, et al. v. Shah, et al., 2023 WL 168749 (E.D. Mich. January 12, 2023), parties moved the court to grant their request that five witnesses, no longer living in Michigan, be permitted to testify remotely in a bench trial set to begin January 31, 2023. The parties asserted that the standard burdens of travel, to wit, time, money, and inconvenience, warranted leave to testify remotely. Judge Ludington, citing the Federal Aviation Administration’s own tweets regarding the FAA’s technological issues and announcing its system outage causing nationwide flight delays, and news reports regarding storms and winter weather adding uncertainty to air travel, found that mere uncertainty provided the good cause and compelling circumstances to grant the request.Judge Ludington also heralded his Court’s ability to accommodate remote testimony and, in a nod to the importance of security in legal proceedings, added that he would employ “adequate safeguards” to secure the remote te

The Third Circuit also concluded that the evidence did not support commonality with respect to a proposed class broadly encompassing all kinds of “access barriers.” However, the Third Circuit left open the possibility that the district court could certify a narrower class on remand.The majority did not address an evidentiary issue regarding whether the Federal Rules of Evidence apply to class certification decisions, and thus whether the customer complaints were admissible. Judge Porter, however, wrote a thorough concurring opinion highlighting a circuit split on that issue and concluding that under Federal Rule of Evidence 1101 (probably not one you’ve read recently, and which several circuits apparently had overlooked), the rules of evidence apply in full to class certification proceedings (except that Federal Rule of Civil Procedure 43(c) allows courts deciding motions to accept affidavits or declarations in lieu of live testimony). Judge Porter’s concurring opinion is well worth reading and citing if you are faced with attempts to use hearsay or other inadmissible evidence to certify a class.

The plaintiff's counsel contended that videoconference expert testimony would be "patently unfair," particularly since the plaintiff's experts had testified live.The court disagreed, holding that COVID-19 constituted good cause for the request and that "modern videoconference technology ... satisfies the goals of live, in-person testimony and avoids the short-comings of deposition testimony." Importantly, the court cited advisory comments to FRCP 43(a) that remote testimony through "[c]ontemporaneous transmission may be better than an attempt to reschedule the trial." It also held that "as this is a bench trial, the Court is confident it will adequately understand" the expert's testimony "even through videoconference technology."

As pointed out by the court in Pathri, in the more than 30 years since Aqua Marine was decided, the options for virtual testimony extend well beyond the telephone, rendering these concerns somewhat obsolete. Still, the court “found helpful” that Federal Rule of Civil Procedure 43(a), which specifically permits trial testimony via contemporaneous video “for good cause in compelling circumstances and with appropriate safeguards,” sets a standard similar to the “exigency” referred to in Aqua Marine.With this backdrop, the New Jersey Appellate Division provided the following seven factors for judges when considering applications for video testimony:The witness’s importance to the proceeding (“The greater the witness’ importance in the dispute, the heavier should be the burden of excusing in-person testimony.”)The severity of the factual dispute to which the witness will testify (“The judge should consider whether the witness — even if a party — is offered to address a sharply disputed question of fact, something that goes to the heart of the matter.”

Such “extraordinary advancements in technology” and the “dramatically different circumstances” that led to the request here called for the allowance of contemporaneous video testimony. Federal Rule of Civil Procedure 43(a), which was amended in 1996 to allow trial testimony via contemporaneous video transmission “for good cause in compelling circumstances and with appropriate safeguards,” supported that result as well, Judge Fisher said.The court then proceeded to discuss a list of factors that should be considered in deciding whether to grant an application to testify at trial in this fashion. Indeed, roughly half the opinion was dedicated to that subject, giving trial courts ample guidance.