Ashton Woods Holdings L.L.C. et al v. USG Corporation et al

Filing 122

ORDER by Judge Haywood S. Gilliam, Jr. DENYING 82 MOTION FOR LIVE-STREAMED TRIAL TESTIMONY AND DENYING AS MOOT ( 91 , 97 , 92 , and 98 ) MOTIONS TO INTERVENE AND SHORTEN TIME. (ndrS, COURT STAFF) (Filed on 4/5/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ASHTON WOODS HOLDINGS L.L.C., et
al.,

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Plaintiffs,
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v.
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USG CORPORATION, et al.,

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United States District Court
Northern District of California

Defendants.

Case No. 15-cv-01247-HSG
ORDER DENYING MOTION FOR
LIVE-STREAMED TRIAL
TESTIMONY AND DENYING AS
MOOT MOTIONS TO INTERVENE
AND SHORTEN TIME
Re: Dkt. Nos. 82, 91, 92, 97, 98

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Pending before the Court is Plaintiffs’ motion for live-streamed trial testimony, for which

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briefing is complete. Dkt. No. 82 (“Mot.”), Dkt. No. 101 (“Opp.”), 115 (“Reply”).1 The Court

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finds this matter appropriate for disposition without oral argument and the matter is deemed

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submitted. See Civil L.R. 7-1(b).

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Plaintiffs seek to present the testimony of several out-of-state witnesses by live-streamed

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video at trial, relying on Federal Rule of Civil Procedure 43. That rule provides that “[f]or good

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cause in compelling circumstances and with appropriate safeguards, the court may permit

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testimony in open court by contemporaneous transmission from a different location.” Fed. R. Civ.

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P. 43(a).
However, Plaintiffs’ request is precluded by Rule 45. That rule allows the Court to issue

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subpoenas for a “person to attend a trial . . . only as follows”: “(A) within 100 miles of where the

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person resides, is employed, or regularly transacts business in person,” or for certain witnesses,

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“(B) within the state where the person resides, is employed, or regularly transacts business in

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On March 16, 202021, the Court granted Plaintiffs’ unopposed Motion to Shorten Time for the
hearing, set a shortened briefing schedule, and said that it would set a hearing date if it determined
that one is necessary. Dkt. No. 85.
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person . . .” Fed. R. Civ. P. 45(c). Plaintiffs’ reading of Rule 43 would negate the limitations built

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into Rule 45, and accordingly fails for the reasons many courts have articulated in rejecting

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identical requests. See Roundtree v. Chase Bank USA, N.A., No. 13-239 MJP, 2014 WL 2480259,

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at *2 (W.D. Wash. June 3, 2014) (rejecting plaintiff’s “attempts to avoid the geographic limits of

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FRCP 45(c) by arguing that trial testimony via live video link moves a trial to the physical

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location of the testifying person”); Ping-Kuo Lin v. Horan Cap. Mgmt., LLC, No. 14 CIV. 5202

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LLS, 2014 WL 3974585, at *1 (S.D.N.Y. Aug. 13, 2014) (concluding that Rule 43(a) “does not

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operate to extend the range or requirements of a subpoena”); Lea v. Wyeth LLC, No. 1:03-CV-

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1339, 2011 WL 13195950, at *1 (E.D. Tex. Nov. 22, 2011) (“There is nothing in the language of
Rule 43(a) that permits this court to compel the testimony of an individual who is indisputably

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United States District Court
Northern District of California

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outside the reach of its subpoena power.”). Rule 45 contains no exception that would permit the

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Court to decree that out-of-state witnesses are within 100 miles of a trial in Oakland, California

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because streaming facilities exist in their states, and the fact that the witnesses at issue are beyond

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that radius and unwilling to travel voluntarily to this district to testify disposes of Plaintiffs’

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motion.

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Moreover, even if the Court could exercise subpoena authority requiring witnesses beyond

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Rule 45’s clear geographical limits to provide video testimony from where they live, Plaintiffs

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come nowhere close to satisfying the requirements of Rule 43. The Court finds this to be the

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“ordinar[y]” case in which “depositions, including video depositions, provide a superior means of

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securing the testimony of a witness who is beyond the reach of a trial subpoena.” Fed. R. Civ. P.

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43, Advisory Committee Notes, 1996 Amendment. No “unexpected reason” for these witnesses’

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unavailability is present here: they are, and have at all relevant times been, in other states beyond

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this Court’s ability to compel them to come to California for a trial. Moreover, it is undisputed

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that Plaintiffs could have deposed these witnesses, but chose not to do so. Nothing in this record

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constitutes a “compelling circumstance.” To the contrary, this case presents the routine

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circumstance in which Plaintiffs were amply on notice that these witnesses might well decline to

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travel to this district for trial, and should have proceeded accordingly if they wanted deposition

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testimony beyond what now exists. See id. (“A party who could reasonably foresee the
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circumstances offered to justify transmission of testimony will have special difficulty in showing

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good cause and the compelling nature of the circumstances.”).

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Accordingly, Plaintiffs’ motion for live-streamed trial testimony is DENIED.

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Additionally, several non-parties filed motions to intervene to oppose Plaintiffs’ motion, see Dkt.

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No. 91, 97, and motions to shorten time for the hearings on the motions to intervene, see Dkt. No.

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92, 98. In light of the Court’s ruling denying Plaintiffs’ motion, the Court DENIES AS MOOT

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the motions to intervene and motions to shorten time.

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IT IS SO ORDERED.
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Dated: 4/5/2021

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United States District Court
Northern District of California

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______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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