BELL v. O'REILLY AUTO ENTERPRISES LLC

Filing 156

ORDER ON DEFENDANT'S MOTION TO CONTINUE TRIAL denying 148 Motion to Continue By JUDGE JON D. LEVY. (aks)

Case 1:16-cv-00501-JDL Document 156 Filed 03/16/21 Page 1 of 2

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRIAN BELL,
Plaintiff,
v.
O’REILLY AUTO
ENTERPRISES LLC,
Defendant.

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ORDER ON DEFENDANT’S MOTION TO CONTINUE TRIAL
Defendant O’Reilly Auto Enterprises LLC (“O’Reilly Auto”) has moved to
continue the scheduling of the trial in this matter because four out-of-state witnesses
may be unable to safely travel to Maine and testify in person due to the COVID-19
pandemic (ECF No. 148). Plaintiff Brian Bell opposes the motion (ECF 149). For the
following reasons, I deny the motion.
Federal Rule of Civil Procedure 43(a) states that a witness’s trial testimony
“must be taken in open court.”

However, “[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.” Id.
In this instance, there is good cause for allowing the out-of-state witnesses to
testify by videoconference, for two reasons. First, if this case was continued for the
reasons O’Reilly Auto suggests, there is no certainty as to when the conditions
associated with the pandemic would permit witnesses to travel to Maine without any

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risk. 1 Consequently, the continuance would be open-ended and the final resolution
of this action, which was initiated in 2016, could be delayed indefinitely.
Second, O’Reilly Auto has not demonstrated that the use of video testimony
would be unfairly prejudicial. The COVID-19 pandemic has caused courts to make
extensive use of video communications in both criminal and civil proceedings. See,
e.g., Liu v. State Farm Mut. Auto. Ins. Co., --- F. Supp. 3d. ---, 2020 WL 8465987, at
*3 (W.D. Wash. Dec. 17, 2020) (reasoning that the lack of “discernable difference
between . . . ‘live’ versus ‘livestreamed’ testimony” allows the juror to assess the
witnesses’ credibility); Kieffaber v. Ethicon, Inc., Civil Action No. 20-1177-KHV, 2021
WL 425822, at *2 (D. Kan. Feb. 8, 2021) (finding the COVID-19 pandemic was a
sufficiently compelling circumstance to “justify the use of contemporaneous video
conferencing technology” to replace the in person trial). There is nothing associated
with the subject matter of this employment dispute, nor the anticipated testimony
from the out-of-state witnesses, to suggest that video will not be an effective means
for presenting their testimony.
For the foregoing reasons, it is hereby ORDERED that O’Reilly Auto’s Motion
to Continue Trial (ECF No. 148) is DENIED.
SO ORDERED.

Dated: March 16, 2021
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

1 Even if Maine continues to relax the travel restrictions put in place during the pandemic, see Me.
Exec. Order No. 35 FY 20/21 (Mar. 5, 2021), an individual’s ability to safely travel will continue to
depend on, among other things, her medical condition and vaccination status.
2