Hale vs. Emporia State University, et al.,
MEMORANDUM AND ORDER denying 87 plaintiff Melvin Hale's Motion to Allow Witness Testimony by Telephone or Video Conference. Signed by District Judge Daniel D. Crabtree on 07/03/2019. (tvn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELVIN HALE, PH.D.,
Case No. 16-4183-DDC-KGG
JACKIE VIETTI, PH.D.,
DAVID CORDLE, PH.D.,
MIRAH DOW, PH.D. and
GARY WYATT, PH.D.,
MEMORANDUM AND ORDER
This matter comes before the court on pro se1 plaintiff Melvin Hale’s Motion to Allow
Witness Testimony by Telephone or Video Conference (Doc. 87). Defendants, collectively,
have filed a Response (Doc. 90). And, Dr. Hale has filed a Reply (Doc. 98).
Plaintiff contends that the court should permit remote testimony in his upcoming trial.
Specifically, plaintiff intends to call three or fewer witnesses who live more than 100 miles from
the trial in Topeka, Kansas. So, plaintiff cannot compel these witnesses’ attendance by trial
subpoena under Federal Rule of Civil Procedure 45(c).2 And, plaintiff asserts that he lacks the
financial means to defray travel and lodging expenses for these witnesses.
Because plaintiff proceeds pro se, the court construes his filings liberally. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s pleadings liberally and hold them to
a less stringent standard than formal pleadings drafted by lawyers).
Plaintiff never suggests that the witnesses reside, work, or conduct regular business in person in Kansas.
Under Federal Rule of Civil Procedure 45(c)(1)(B)(ii), a subpoena may command a person to attend the trial if the
trial is “within the state where the person resides, is employed, or regularly transacts business in person, if the
person . . . is commanded to attend a trial and would not incur substantial expense.” Plaintiff has neither identified
the potential witnesses nor argued that Rule 45(c)(1)(B)(ii) applies.
In response, defendants argue, plaintiff has not satisfied his burden under Federal Rule of
Civil Procedure 43(a)—that is, defendants assert that plaintiff has not established compelling
circumstances warranting remote testimony, nor has plaintiff ensured appropriate safeguards.
Doc. 90 at 2. The court agrees and denies Dr. Hale’s motion for the reasons explained, below.
Generally, a witness’s testimony at trial must be taken in open court. See Fed. R. Civ. P.
43(a). But, Rule 43 also “provides that testimony by contemporaneous transmission (by
telephone or videoconference, for instance) may be taken in open court ‘[f]or good cause in
compelling circumstances with appropriate safeguards.’” Eller v. Trans Union, LLC, 739 F.3d
467, 477 (10th Cir. 2013) (quoting Fed. R. Civ. P. 43(a)).
Mere inconvenience for the witness does not satisfy the good cause standard. Gil-Leyva
v. Leslie, No. 18-1209, 2019 WL 2651093, at *3 (10th Cir. June 27, 2019). Generally, Rule
43(a) applies when a witness cannot appear in person “for unexpected reasons, such as accident
or illness[.]” Id. (quoting Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment).
In contrast, other reasons “must be approached cautiously.” Id. (citation omitted).
The court denies plaintiff’s motion because he has not satisfied Rule 43(a)’s good cause
standard. Plaintiff’s motion states that he would have to pay for the witnesses’ travel and
lodging expenses, indicating that the witnesses themselves face financial difficulties.3 Plaintiff
does not identify the potential witnesses by name, nor does he explain the extent of their
financial difficulties. That said, “financial hardship isn’t the type of ‘unexpected reason[ ]’ that
is ‘typically required in a showing of good cause for telephonic testimony.’” Gil-Leyva, 2019
Plaintiff’s motion indicates that the unnamed witnesses fall outside the subpoena power of the court; so, the
court concludes that plaintiff is not referring to the associated witness and mileage fees for trial subpoenas.
WL 2651093, at *3 (quoting Eller, 739 F.3d at 478). Also, Rule 43 applies when the witness
cannot appear for “‘unexpected reasons, such as accident or illness,’ and not when it is merely
‘inconvenient for the witness to attend the trial.’” Eller, 739 F.3d at 478 (quoting Fed. R. Civ. P.
43(a) advisory committee’s note to 1996 amendment). Plaintiff’s argument skews toward
inconvenience. And, while plaintiff provides some reason to support his request, it is not an
unexpected reason. The court thus finds plaintiff’s argument unpersuasive.
Second, even if good cause were established, “Rule 43(a) . . . is by its own terms
permissive and not mandatory[.]” Eller, 739 F.3d at 478. And, “the importance of presenting
live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the
factfinder may exert a powerful force for truthtelling.” Fed. R. Civ. P. 43(a) advisory
committee’s note to 1996 amendment. Plaintiff concedes that remote testimony is “not a favored
solution,” but asserts that the witnesses can present testimony to authenticate documents 4 and
establish context. Doc. 87 at 2–3. Plaintiff does not explain the scope or subject matter of the
context that the unnamed witnesses would offer remotely. Without more, the court (and the
defendants) cannot determine whether the unnamed witnesses might testify to issues where the
ceremony of trial would encourage truthtelling. The court thus concludes that the court—even if
plaintiff could establish good cause—would lack detail necessary to decide how to exercise its
discretion under Rule 43(a).
For the reasons explained above, the court denies plaintiff’s Motion to Allow Witness
Testimony by Telephone or Video Conference (Doc. 87).
Also, plaintiff asserts that he was unable to secure deposition testimony from witnesses because of financial
hardship. The court is mindful of plaintiff’s situation and notes it here only to illustrate that this circumstance did
not make the witnesses unavailable for trial for unexpected reasons.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Melvin Hale’s
Motion to Allow Witness Testimony by Telephone or Video Conference (Doc. 87) is denied.
IT IS SO ORDERED.
Dated this 3rd day of July, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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