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O'Bryant v. Gray Insurance Company

United States District Court, E.D. Louisiana

October 22, 2017

TIMOTHY G. O'BRYANT
v.
GRAY INSURANCE COMPANY, ET AL

         SECTION “N” (1)

          ORDER AND REASONS

          KURT D. ENGELHARDT UNITED STATES DISTRICT JUDGE

         At the pretrial conference in this matter held on Thursday, October 5, 2017, Plaintiff's counsel disclosed his intention to subpoena and call a variety of witnesses[1] via contemporaneous video transmission pursuant to Rule 43 of the Federal Rules of Civil Procedure. At that time, since opposing counsel had been unaware of such plan, the undersigned encouraged the parties to discuss an agreed-upon procedure to elicit such testimony, or to advise the Court of any such objections. Earlier this week, the Court was advised that there had been no stipulation and that Defendants objected to proceeding with any witness testimony via contemporaneous video transmission. The Court instructed all parties to file memoranda on the issue, which they did. (See Rec. Doc. 135, 136 and 139.)

At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

         Thus, it is incumbent upon Plaintiff, as the party desiring to elicit such testimony via contemporaneous video transmission, to demonstrate “good cause in compelling circumstances and with appropriate safeguards”, in order to proceed in this fashion.

         Plaintiff offers no good cause or compelling circumstances, but rather cites cases in which other courts approved of contemporaneous video transmissions.

         In two of the four cases cited, Judge Eldon Fallon of this Court allowed contemporaneous video transmission of testimony in expansive, nationwide, multidistrict cases. In In re Vioxx Products Liability Litigation, he cited the five factors a party must demonstrate in order to use video conferenced testimony:

In Washington Public, although analyzing the case under the then-current Rule 45(e), the court fashioned a five-prong test for determining whether the use of videoconferencing was permitted at trial. 1988 WL 525314, at *2-3. The five factors were: (1) the control exerted over the witness by the defendant; (2) the complex, multi-party, multi-state nature of the litigation; (3) the apparent tactical advantage, as opposed to any real inconvenience to the witness, that the defendant is seeking by not producing the witness voluntarily; (4) the lack of any true prejudice to the defendant; and (5) the flexibility needed to manage a complex multi-district litigation. Id. This same five-prong text was adopted and used by the court in San Juan Dupont, 129 F.R.D. at 426. For the present case, the Court finds that this five-prong test may also be employed to determine the existence of “good cause” and “compelling circumstances” under Rule 43.

439 F.Supp.2d 640, 643 (E.D. La. 2006).

         This case is not the type of complex, multi-party, multi-state litigation for which flexibility advantage in favor of Defendants, as several of these witnesses have already personally appeared to provide deposition testimony. On the other hand, there is also no true prejudice to Defendants. Finally, Plaintiff does not assert that any Defendant controls any of these potential witnesses, but rather states that several “are or were employees of the defendants.” (Rec. Doc. 139, pp. 5-6). He does not indicate which ones currently work for a defendant and are being controlled by the defendant such that their attendance is being hindered by such employment.

         Thus, the Court does not find that any circumstance exists that is of a “compelling” nature, and fails to see any exigent situation in which Plaintiff should be so accommodated. The Advisory Committee's 1996 Note under Rule 43(a) provides guidance as to when such circumstances exist, which are not present here. In short, contemporaneous video transmission for regular witness testimony, during the course of a routine “slip and fall” case such as this, does not lend itself to contemporaneous transmission of testimony.

         Plaintiff also fails to demonstrate why such testimony could not have been taken via a perpetuation deposition under Fed.R.Civ.P. Rule 32(4)(B), which is the normal process for procuring the needed testimony for presentation of absent witnesses' testimony at trial. Moreover, some of the witnesses Plaintiff seeks to have appear via contemporaneous transmission have already been deposed in this case, and thus their testimony has been memorialized not only in writing but also on video. Live testimony is always preferable to a video transmission, in that the jury can view the witness in his/her entirety, including body language, and how the witness conducts himself/herself on the witness stand, which is particularly important in evaluating credibility. Nothing in Rule 43(a) suggests that the contemporaneous video transmission should be utilized simply for the convenience of counsel, or because of the mere distance of a witness from the courthouse.

         Even so, the following witnesses[2] will not be called at this trial at all, because they were not timely listed on Plaintiff's witness list or in the pretrial order: (1) Brian O'Bryant, (2) Corporate Representative of Greenwood Leflore Hospital, (3) Dr. Ravi Pande, and (4) Jae Russell[3]

         That leaves the following witnesses which are the subject of Plaintiff's attempt to use Rule 43(a): (1) Lee Carr, (2) Darrell Keith Chamblee, (3) Dr. Joseph S. Bennett, (4) Dustin Rabi, (5) Dr. Craig Clark, and (6) Dr. Bruce Newell. To the extent any of the doctors listed herein will offer expert ...


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