METCALF et al v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. et al

Filing 348

ORDER - IT IS HEREBY ORDERED that Alexander Kazan, Ph.D, also known as Dr. Alexander Karimi, shall be permitted to testify remotely under FED. R. CIV. P. 43(a). Signed by Chief Judge Matthew W. Brann on 5/31/2022. (jr)

Case 4:11-cv-00127-MWB Document 348 Filed 05/31/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LINDA METCALF, et al.,

No. 4:11-CV-00127

Plaintiffs.

(Chief Judge Brann)

v.
MERRIL LYNCH, PIERCE, FENNER
& SMITH, INC., et al.,
Defendants.
MEMORADUM OPINION AND ORDER
MAY 31, 2022
During the course of the parties’ trial preparations, a dispute emerged about
the ability of a witness—Alexander Kazan, Ph.D, who is known as Dr. Alexander
Karimi—to testify by video conference. At the urging of the parties, I held a brief
telephone status conference on May 24, 2022, and entertained their arguments for,
and against, video testimony by Dr. Kazan under FED. R. CIV. P. 43(a). With trial
fast approaching, I conclude that Dr. Kazan is permitted to testify by video.
Under Rule 43(a), “[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.” The Advisory Committee
Note to the 1996 Amendment provides additional texture: although it first
emphasizes that remote testimony “cannot be justified merely by showing that it is
inconvenient for the witness to attend the trial,” it then adds that “[t]he most

Case 4:11-cv-00127-MWB Document 348 Filed 05/31/22 Page 2 of 2

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 remain able to testify from a different place.”
During the COVID-19 pandemic, courts have emphasized this latter statement
in allowing for remote testimony.1 Those days appear to be numbered. Through the
ingenuity of our pharmaceutical companies and health care practitioners, the
pandemic appears to be marching its way towards an eventual conclusion. Still, those
steps have been halting and staggered. As a result, I find that Dr. Karimi, who
maintains a psychological counseling practice in Burbank, California, may avail
himself of remote testimony to ensure that he is able to continue to see patients in
need of his services. Whether his testimony—which as I understand it, will detail
how he is the other individual who received funds in the New Mexico interpleader
action—is indeed relevant, or otherwise prohibited under the Federal Rules of
Evidence, remains to be seen.
AND NOW, IT IS HEREBY ORDERED that Alexander Kazan, Ph.D, also
known as Dr. Alexander Karimi, shall be permitted to testify remotely under FED.
R. CIV. P. 43(a).
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge 
1

See e.g., V5 Techs., LLC v. Switch, LTD., 2021 WL 4781511 (D. Nev. Oct. 13, 2021).
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