State of Montana v. Talen Montana, LLC et al

Filing 329

ORDERED: The parties Joint Motion to Direct Court Personnel to Establish a Live, Non-Public Video Feed of Trial (Doc. 327) is DENIED. IT IS FURTHER ORDERED that the parties Joint Motion to Allow Witnesses to Testify by Videoconference (Doc. 328) is GRANTED IN PART as to Dr. Michael Harvey and DENIED IN PART subject to renewal as to all other witnesses. SEE ORDER FOR FULL DETAILS AND INFORMATION. Signed by Judge Dana L. Christensen on 12/2/2021. (HEG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

STATE OF MONTANA,

CV 16–35–H–DLC

Plaintiff,
vs.

ORDER

TALEN MONTANA, LLC, f/k/a PPL
Montana, LLC, and NORTHWESTERN
CORPORATION, d/b/a NorthWestern
Energy, a Delaware corporation, and
UNITED STATES OF AMERICA,
United States Forest Service, United
States Bureau of Reclamation, and United
States Bureau of Land Management,
Defendants.
Before the Court are the parties’ Joint Motion to Direct Court Personnel to
Establish a Live, Non-Public Video Feed of Trial (Doc. 327) and Joint Motion to
Allow Witnesses to Testify by Videoconference (Doc. 328).
The motion for a live, non-public video feed of trial states that such a feed
would allow witnesses to observe trial remotely while they are not testifying,
alleviating the risks of COVID-19 exposure and expenses and inconveniences of
attending the entire trial in-person for witnesses who reside outside of Montana.
(Doc. 327 at 3–4.) The Court is sympathetic to these concerns, but it is the Court’s
experience that maintaining a video feed of trial can present technical and other
1

difficulties that may disrupt proceedings and present challenges for Court staff.
Accordingly, the Court will establish live non-public telephonic access to the trial
so that witnesses may listen to trial testimony, but the motion for a live video feed
(Doc. 327) will be denied.
The motion to permit witnesses to testify by videoconference states that Dr.
Michael Harvey wishes to testify by videoconference because he resides in New
Zealand, and evolving travel restrictions could prevent Dr. Harvey from returning
to New Zealand if he were to travel to testify in person. (Doc. 328 at 3.) The
motion further states that “other witnesses may also be forced to testify by
videoconference by the time of trial” based on evolving COVID-19 concerns and
required travel from outside Montana, and the parties will inform the Court at the
final pretrial conference of the identity of any additional witnesses who wish to
testify by videoconference. (Id. at 3–4.) The parties have shown good cause for
permitting Dr. Harvey to testify by videoconference, and the motion will be
granted in part as to him. The Court will not, however, grant blanket permission
for yet-to-be-identified witnesses to testify by videoconference in the absence of
reasons why specific witnesses cannot appear in person. To the extent that
exposure to COVID-19 in the courtroom is a primary concern of the parties, the
Court advises that implementation of COVID-19 safety measures during trial, such
as requiring social distancing and/or masks in the courtroom, may be discussed at
2

the final pretrial conference. Thus, as to all witnesses other than Dr. Harvey, the
motion to allow witnesses to testify by videoconference (Doc. 328) will be denied
subject to renewal.
Accordingly, IT IS ORDERED that the parties’ Joint Motion to Direct Court
Personnel to Establish a Live, Non-Public Video Feed of Trial (Doc. 327) is
DENIED. The Court will instead establish live non-public telephonic access to the
trial so that witnesses may listen to the trial. The Clerk of Court will notify
counsel via e-mail of the conference line information within 24 hours of the first
day of trial.
IT IS FURTHER ORDERED that the parties’ Joint Motion to Allow
Witnesses to Testify by Videoconference (Doc. 328) is GRANTED IN PART as to
Dr. Michael Harvey and DENIED IN PART subject to renewal as to all other
witnesses. Dr. Michael Harvey may testify via Zoom at the trial. The Clerk of
Court will notify counsel via e-mail of the meeting ID and password. Zoom
Guidance and Setup are available at https://www.mtd.uscourts.gov/zoom-hearings.
DATED this 2nd day of December, 2021.

3