McNeese v. United States of America

Filing 135

ORDER by District Judge Margaret I. Strickland GRANTING 134 Defendant's unopposed Motion for Remote Witness Testimony. Counsel are advised to review the Court's safeguards outlined herein. (rcf)

Case 1:17-cv-01164-MIS-KK Document 135 Filed 01/21/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARY F. MCNEESE,
Plaintiff,
v.

Civ. No. 1:17-cv-01164 MIS/KK

UNITED STATES OF AMERICA,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION
FOR REMOTE WITNESS TESTIMONY
THIS MATTER is before the Court on Defendant’s Motion for Remote Witness
Testimony, filed on January 18, 2022. ECF No. 134. Plaintiff does not oppose the Motion.
Id. at 3. Having considered the Defendant’s submissions, the record, and the relevant
law, the Court will grant the Motion.
The Federal Rules of Civil Procedure provide that witness testimony at trial “must
be taken in open court” unless an exception applies. Fed. R. Civ. P. 43(a). The Rule adds
that “[f]or good cause in compelling circumstances and with appropriate safeguards, the
court may permit testimony in open court by [remote means].” Id. The Advisory Committee
Notes elaborate on the intent of the good cause standard:
[Remote testimony] is permitted only on showing good cause in compelling
circumstances. 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. The opportunity to judge the
demeanor of a witness face-to-face is accorded great value in our tradition.
Transmission cannot be justified merely by showing that it is inconvenient
for the witness to attend the trial.

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The most persuasive showings of good cause and compelling
circumstances are likely to arise when a witness is unable to attend trial for
unexpected reasons, such as accident or illness, but remains able to testify
from a different place. . . .
Good cause and compelling circumstances may be established with relative
ease if all parties agree that testimony should be presented by [remote
means]. The court is not bound by a stipulation, however, and can insist on
live testimony. Rejection of the parties’ agreement will be influenced, among
other factors, by the apparent importance of the testimony in the full context
of the trial.
A party who could reasonably foresee the circumstances offered to justify
[remote] testimony will have special difficulty in showing good cause and
the compelling nature of the circumstances.
Fed. R. Civ. P. 43 advisory committee notes to 1996 amendment. In applying this
standard, “[d]istrict courts have typically concluded that COVID-19-related health
concerns justify requests to testify telephonically or through audiovisual means.” Legacy
Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 1023 (D.N.M. 2020) (collecting cases).
Here, this matter is set for a bench trial on April 4, 2022. ECF No. 132. Defendant
timely filed its Motion requesting remote testimony due to its concerns regarding
COVID-19 and its intent to call as witness medical providers from the Veterans
Administration (VA). See ECF No. 134. The Court notes that Plaintiff does not oppose
Defendant’s request to allow remote testimony. Id. at 3. Although it is not bound by the
parties’ stipulation, the Court finds the stipulation weighs in favor of granting the Motion.
Furthermore, the Court is aware that remote testimony has frequently been allowed by
district courts in the face of the global pandemic. See Legacy Church, Inc., 472 F. Supp.
3d at 1023. Although, at this point, there is nothing particularly “unexpected” about the
circumstances. By the time the trial begins, courts and litigants will have been navigating
the pandemic for more than two years. Nevertheless, the Court understands the present
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surge of cases is expected to create additional problems for the VA medical clinic
physicians, and this weighs in favor of granting the Motion.
In granting the Motion, the Court sets out the following safeguards:
1. Defense counsel will be responsible for setting up the necessary technology in
advance and for understanding how to operate it properly to ensure smooth
presentation of testimony at trial.
2. Counsel are advised that the Court expects remote witnesses to testify from an
appropriate location. Examples of inappropriate locations include, but are not
limited to: a moving vehicle, a breakroom with others present creating
background noise, the operating room or other room in the presence of a
patient, etc.
3. If the necessary technology fails to function properly or witnesses otherwise
exhibit a lack of decorum (such as by failing to abide by the Court’s second
safeguard explained above), the Court will be inclined to reverse this Order,
even mid-trial, and require in-person testimony at trial.
IT IS THEREFORE ORDERED that Defendant’s unopposed Motion for Remote
Witness Testimony, ECF No. 134, is GRANTED.
IT IS SO ORDERED.

………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE

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