Aoki et al v. Gilbert et al

Filing 360

ORDER signed by District Judge Troy L. Nunley on 3/18/2019 GRANTING 343 Ex Parte Application for Order Authorizing Remote Testimony by Video. Plaintiffs' counsel is ORDERED to contact the Court's Director of IT, Richard Arendt, on M onday, 3/18/2019, to set up a date and time for IT training and testing of the required system(s). Such testing will necessarily take place during the week of 3/18, as set by Mr. Arendt. (cc: IT Department Sacramento; Courtesy copy to Mr. Arendt's mailbox.) (York, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 THOMAS T. AOKI, M.D., an individual, et al., Plaintiffs, 13 14 15 No. 2:11-cv-02797-TLN-CKD ORDER v. GREGORY FORD GILBERT, an individual, et al., 16 Defendants. 17 18 I. PROCEDURAL HISTORY 19 This matter is before the Court on Plaintiff Thomas T. Aoki’s (“Plaintiffs”) Ex Parte 20 Application for Order Authorizing Remote Testimony by Video. (ECF No. 343.) Prior to and at 21 the Final Pretrial Conference, Defendants indicated a desire to call a limited number of witnesses 22 by videoconference. (See ECF No. 349 at 9.) At the conference, Plaintiffs’ counsel agreed to 23 work with counsel for Defendants to arrange for such appearances, and the Court ordered the 24 parties to work out the details (such as, for example, the logistics of presenting exhibits to 25 witnesses and the timing of calling witnesses by video). (Id.) The Court indicated that, provided 26 the parties could arrange for it, videoconference appearances would be permissible. (Id.) 27 Thereafter, the Court received Plaintiffs’ present ex parte application (ECF No. 343) and 28 Defendants’ response thereto (ECF No. 346), which made it clear that the parties were not only 1 1 unable to work out the details, but further that Defendants would no longer stipulate to the 2 concept of videoconference appearances in general. The Court deferred ruling on the issue in the 3 Final Pretrial Order (ECF No. 349 at 9) indicating it would rule by separate order. That order 4 follows, and for the reasons set forth below, Plaintiffs’ Application is GRANTED. 5 II. STANDARD 6 Under Federal Rule of Civil Procedure 43(a): At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. 7 8 9 10 11 “The use of such contemporaneous transmission in lieu of live testimony is expressly reserved to 12 the sound discretion of the trial court.” Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 500 13 (Fed. Cl. 2010); accord Palmer v. Valdez, 560 F.3d 965, 969 (9th Cir. 2009). In addition, 14 “[a]ppropriate safeguards exist where the opposing party’s ability to conduct cross-examination is 15 not impaired, the witness testifies under oath in open court, and the witness’s credibility can be 16 assessed adequately.” Warner v. Cate, No. 1:12-cv-1146-LJO-MJS, 2015 WL 4645019, at *1 17 (E.D. Cal. Aug. 4, 2015). 18 III. ANALYSIS 19 Plaintiffs request an order permitting eleven witnesses to testify by live videoconference 20 transmission. According to Plaintiffs, all but one reside outside of California; the single 21 California resident, it appears, may live in or around Costa Mesa, which is more than 100 miles 22 from the Eastern District courthouse in Sacramento.1 (ECF Nos. 343 and 351.) In opposition to 23 Plaintiffs’ application, Defendants argue that Plaintiffs have not shown compelling 24 circumstances—as required under Rule 43—to proffer testimony by videoconference. (ECF No. 25 346 at 2-3.) More specifically, Defendants contend that the majority of Plaintiffs’ proposed video 26 The Court has also received Defendants’ Notice of Nonavailability of Defendant Marc Rose. (ECF No. 358.) At a minimum, for the additional reasons provided therein, good cause and compelling circumstances exist for Plaintiffs to call Dr. Rose by televideo. Being made aware of Dr. Rose’s condition, however, Plaintiffs may elect not to call Dr. Rose at all. The Court will address any issues related to Dr. Rose’s health if and when necessary. 1 27 28 2 1 witnesses are healthy and able to travel. (Id.) In their reply brief, Plaintiffs elaborate on their 2 original application, explaining that many of their listed witnesses are hostile or third-party 3 witnesses who live outside of California and therefore cannot be compelled to appear in this 4 Court. (ECF No. 351 at 2-3.) Even those who are not hostile are unwilling to travel, according to 5 Plaintiffs. (Id.) 6 It is true that the advisory committee’s notes to Rule 43 caution that simple inconvenience 7 to the witness does not justify the use of video transmission. Fed. R. Civ. Pro. 43 Advisory 8 Committee’s Note (1996 Amendment). But courts have nonetheless found that geographical 9 distance may indeed provide good cause and compelling circumstances to justify the witness’s 10 appearance by video. See Warner, 2015 WL 4645019, at *1 (collecting cases). There is no 11 question that this case involves many witnesses who reside outside of California. Moreover, 12 beyond the general inconvenience of traveling, the witnesses at issue here live more than 100 13 miles from the courthouse and therefore cannot be compelled by subpoena to testify. See Fed. R. 14 Civ. Pro. 45. These facts provide good cause and compelling circumstances for the Court to 15 permit videoconference testimony from these witnesses who are otherwise outside of the Court’s 16 subpoena power. See Warner, 2015 WL 4645019, at *2. 17 Further, the appropriate safeguards exist in this case because the witnesses will provide 18 live testimony by videoconference, will testify under oath, and will be subject to cross- 19 examination. See Ever Win Int'l Corp. v. Prong, Inc., No. CV156433DMGGJSX, 2017 WL 20 1654063, at *1-2 (C.D. Cal. Jan. 6, 2017) (citing Palmer, 560 F.3d at 973; Beltran–Tirado v. 21 I.N.S., 213 F.3d 1179, 1186 (9th Cir. 2000); Alderman v. SEC, 104 F.3d 285, 288 n.4 (9th Cir. 22 1997); Warner, 2015 WL 4645019, at *1). “Because a witness testifying by video is observed 23 directly with little, if any, delay in transmission . . . courts have found that video testimony can 24 sufficiently enable cross-examination and credibility determinations, as well as preserve the 25 overall integrity of the proceedings.” Warner, 2015 WL 4645019, at *1 (citations omitted). 26 Especially in light of the fact that this is a bench trial, the Court foresees no issues with 27 determining witness credibility, or with the logistics and timing of presenting and cross- 28 examining the various witnesses by video. See Ever Win, 2017 WL 1654063, at *2 (noting that 3 1 the court prefers live testimony but will not foreclose videoconference testimony, especially in a 2 bench trial). 3 IV. CONCLUSION 4 For the reasons set forth above, Plaintiffs’ Ex Parte Application for Order Authorizing 5 Remote Testimony by Video (ECF No. 343) is GRANTED. Plaintiffs’ counsel is ordered to 6 contact the Court’s Director of IT, Richard Arendt, on Monday, March 18, 2019, to set up a date 7 and time for IT training and testing of the required system(s). Such testing will necessarily take 8 place during the week of March 18, as set by Mr. Arendt. 9 10 IT IS SO ORDERED. Dated: March 18, 2019 11 12 13 14 Troy L. Nunley United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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