Cunningham v. Cunningham et al

Filing 32

ORDER granting, in part, and denying, in part, 28 Respondents' Motion for Out-of-State Non-Party Witnesses to Testify by Telephone or Videoconference; and denying, without prejudice, 31 Petitioner's Motion in Limine to Exclude Proposed Witnesses. See Order for details. Signed by Judge Marcia Morales Howard on 12/27/2016. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RYOKO CUNNINGHAM,
Petitioner,
Case No. 3:16-cv-1349-J-34JBT
vs.
TERRANCE CUNNINGHAM and
GLENDA CUNNINGHAM,
Respondents.
/

ORDER

THIS CAUSE comes before the Court on Respondents’ Motion for Out-of-State
Non-Party Witnesses to Testify by Telephone or Videoconference or, in the Alternative,
Motion for Continuance and Incorporated Memorandum of Law (Doc. 28; Motion), filed on
December 21, 2016. Petitioner initiated these proceedings on October 26, 2016, by filing
a Verified Petition for the Return of Minor Child Pursuant to International Treaty and
Federal Statute and Request for Issuance of Show Cause Order (Doc. 1; Verified Petition)
pursuant to The Convention on the Civil Aspects of International Child Abduction (“the
Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the
International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq.1 In
accordance with the expedited nature of Hague Convention proceedings, the Court
scheduled this matter for an evidentiary hearing to be held on January 5, 2017. See Minute
Entry (Doc. 19), entered November 23, 2016. In the instant Motion, Respondents seek to

1

ICARA was previously located at 42 U.S.C. § 11601.

present at the evidentiary hearing the testimony of four witnesses via telephone,
videoconference or other remote means such as Skype. See Motion at 1. In accordance
with the Court’s instructions, see Minute Entry (Doc. 27), Petitioner filed her response in
opposition to the Motion on December 22, 2016.

See Petitioner’s Objection to

Respondents’ Motion for Out-of-State Non-Party Witnesses to Testify by Telephone or
Videoconference or, in the Alternative, Motion for Continuance and Petitioner’s Motion in
Limine to Exclude Proposed Witnesses (Doc. 31; Response). Accordingly, this matter is
ripe for review.
Pursuant to Rule 43, Federal Rules of Civil Procedure (Rule(s)),
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.
See Rule 43(a). Upon review of the Motion and Response, and after due consideration of
the logistical difficulties posed by these expedited proceedings, the Court finds compelling
circumstances and good cause to grant the instant Motion. Although it is the Court’s strong
preference that a witness testify in person at the evidentiary hearing, the Court will permit
the testimony of three of the four witnesses identified in the Motion by contemporaneous
transmission from a remote location.2 However, Respondents must arrange for each
witness to testify from a court reporter’s office or other facility with videoconference

2
The Court will not permit the remote testimony of Joshua Weber. Because Petitioner agreed to the
substance of Weber’s testimony as presented in the Motion, it is unnecessary for him to be presented as a
witness. See Response at 6. Thus, the three witnesses permitted to testify remotely are: Glenda
Cunningham (not the Respondent), Theodore Wills, and Respondents’ expert on Japanese law. The Court
will not permit any other witnesses to testify remotely as no other motions seeking such relief were filed by
the December 21, 2016 deadline.

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equipment that is compatible with the Court’s technology systems.

To the extent

Respondents seek leave to present a witness’s remote testimony by any other means of
transmission, such request is denied. Respondents are cautioned that if they elect to
present these witnesses remotely, in the event the transmission fails or is ineffective, the
Court will not delay or continue the proceedings such that Respondents may be forced to
forego presentation of that evidence.
In addition, the Court finds that the safeguards proposed by Respondents are
appropriate. See Motion at 12. As such, a person authorized to administer oaths in the
location where the witness is located must swear the witness from that location, the witness
must be alone in the room when presenting his or her testimony, the witness must be
provided with any relevant documentary evidence in advance, and Respondents shall pay
any costs associated with arranging the remote testimony. Id. at 12-13. Respondents
must also coordinate with the Court’s technology specialists to arrange for the presentation
of their witnesses by videoconference and allow for appropriate testing of this technology.
Respondents must make the appropriate arrangements prior to the hearing, and the Court
will not continue the hearing due to technological or scheduling difficulties.

In an

abundance of caution, and as what the Court considers a last resort, the Court will accept
evidence presented by declaration. However, to the extent a witness intends to testify via
declaration as to matters such as a party’s intent, the witness should set forth in detail the
manner in which he or she obtained that knowledge, for example, what was said to the
witness by whom, or how the witness otherwise knows this information.

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Finally, the Court notes that Petitioner includes a Motion in Limine seeking the
exclusion of these witnesses in her Response.3 See Response at 1. Petitioner contends
that that the testimony of these witnesses is irrelevant or cumulative. See Response at 1,
5-7.

The Court lacks sufficient information at this time to assess the relevance or

cumulativeness of this testimony and as such, will deny this request without prejudice to
Petitioner raising these objections at the evidentiary hearing. In light of the foregoing, it is
ORDERED:
1. Respondents’ Motion for Out-of-State Non-Party Witnesses to Testify by
Telephone or Videoconference or, in the Alternative, Motion for Continuance and
Incorporated Memorandum of Law (Doc. 28) is GRANTED, in part, and
DENIED, in part.
A. The Motion is GRANTED to the extent that the Court will permit
Glenda Cunningham, Theodore Wills, and the expert on Japanese
law to testify remotely at the January 5, 2017 evidentiary hearing
subject to the requirements set forth above.
B. In all other respects, the Motion is DENIED.
2. To the extent Petitioner moves for the exclusion of these witnesses in Petitioner’s
Objection to Respondents’ Motion for Out-of-State Non-Party Witnesses to
Testify by Telephone or Videoconference or, in the Alternative, Motion for
Continuance and Petitioner’s Motion in Limine to Exclude Proposed Witnesses
(Doc. 31), this request is DENIED, without prejudice. Petitioner may raise her

3

The Court notes that this motion for relief fails to comply with the Local Rules of this Court. Specifically,
Petitioner does not include a memorandum of law to support her argument that these witnesses are due to
be excluded, nor does she provide a certificate of conferral with opposing counsel. See Local Rules 3.01(a),
(g), United States District Court, Middle District of Florida.

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objections to the relevance or cumulativeness of this testimony at the evidentiary
hearing.
DONE AND ORDERED in Jacksonville, Florida, this 27th day of December, 2016.

lc11
Copies to:
Counsel of Record
J.T. Hedman

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