Written by: Christopher H. Corkern
Over the last year, the COVID-19 pandemic has swept across this nation. It has impacted most areas of our daily lives, including the courtroom. From court closures and trial continuances to Zoom depositions and hearings, COVID-19 has certainly influenced our judicial system. In response thereto, federal district courts are more frequently permitting virtual or remote testimony for trials and evidentiary hearings.
Fed. R. Civ. P. 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.” [1] The advisory committee notes indicate a strong preference for live testimony.[2] However, the advisory committee notes also recognize that “[t]he most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place.” [3] “The Court’s discretion on this question is supplemented by its ‘wide latitude in determining the manner in which evidence is to be presented’ under the Federal Rules of Evidence.” [4]
Further, many recent cases acknowledge that “[t]he near-instantaneous transmission of video testimony through current technology permits ‘the jury [or, in a bench trial, the Court] to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration[.].’”[5] Thus, “testimony by videoconference can satisfy the functional goals that Rule 43(a) was designed to achieve.”[6]
Due to the COVID-19 pandemic, several federal courts across the United States have held bench trials by taking witness testimony via “contemporaneous transmission,” as permitted under Rule 43(a).[7] Additionally, on February 11, 2021, the U.S. District Court for the Southern District of Mississippi granted a Rule 43(a) motion for leave to allow testimony by remote transmission of an expert who had health-related concerns in traveling across the country to testify at an evidentiary hearing.[8] Said motion was successfully argued by Deutsch Kerrigan attorneys on behalf of a client in that matter.
[2] See F.R.C.P. 43(a) Advisory Committee’s Note to 1996 Amendment (“The importance of presenting live testimony in court cannot be forgotten.”).
[4] In re RFC & ResCap Liquidating Trust Action, 444 F. Supp. 3d 967, 2020 U.S. Dist. LEXIS 44607, 2020 WL 1280931, at *2 (D. Minn. Mar. 13, 2020) (quoting Parkhurst v. Belt, 567 F.3d 995, 1002 (8th Cir. 2009)).
[5] In re RFC & ResCap Liquidating Trust Action, 444 F. Supp. 3d 967, 2020 U.S. Dist. LEXIS 44607, 2020 WL 1280931, at *2 (D. Minn. Mar. 13, 2020) (quoting In re Vioxx Prods. Litig., 439 F. Supp. 2d 640, 644 (E.D. La. 2006); see also Aoki v. Gilbert, 2019 U.S. Dist. LEXIS 44155, 2019 WL 1243719, at *1 (E.D. Cal. Mar. 18, 2019) (“Because a witness testifying by video is observed directly with little, if any delay in transmission … courts have found that video testimony can sufficiently enable cross-examination and credibility determinations, as well as preserve the overall integrity of the proceedings.”).
[6] Gould Elecs. Inc., v. Livingston Cty. Rd. Comm’n, 470 F. Supp. 3d 735, 739 (E.D. Mich. June 30, 2020).
[7] See Gould Elecs. Inc., v. Livingston Cty. Rd. Comm’n, 470 F. Supp. 3d 735, 744 (E.D. Mich. June 30, 2020) (proceeding with a bench trial via virtual testimony); In re RFC & ResCap Liquidating Trust Action, 444 F. Supp. 3d 967, 2020 U.S. Dist. LEXIS 44607, 2020 WL 1280931, at *3-4 (D. Minn. Mar. 13, 2020) (holding that the COVID-19 pandemic and its impact on the parties’ and witnesses’ ability to appear in-person in court constituted “good cause and compelling circumstances” under Rule 43(a) to permit defense witnesses to testify at a bench trial via video-conference.); Argonaut Ins. Co. v. Manetta Enters., Inc., 2020 U.S. Dist. LEXIS 103625, at *10, 2020 WL 3104033, at *2-3 (E.D.N.Y. Jun. 11, 2020) (exercising the court’s discretion, over one party’s objections, to order the entire 3-day bench trial be conducted via videoconference).
[8] See Allen v. Lyons & Farrar, P.A., et al., U.S. Dist. 2:19-Cv-0030-TBM-MTP (S.D. Miss. Feb. 11, 2021).