Will COVID-19 Make “Unavailable” Witnesses Available?

The Bases for Allowing Remote Testimony  

Courts all around the country used videoconferencing software to conduct bench trials, a process the Civil Jury Project of the New York University School of Law deems “unquestionably” viable. Pressman, “Bench Trial by Videoconference,” 5 Jury Matters, May 2020. A federal court in the Eastern District of Virginia used videoconferencing technology to conduct a patent infringement bench trial in May 2020 involving claims of more than $500 million, with witnesses located in more than 10 states. Bultman, “Cisco’s ‘Unprecedented’ Patent Trial to Test Video Capabilities,” IP Law News, Apr. 30, 2020. A state court in Texas conducted what was widely reported as the nation’s first fully online jury trial in May 2020. Morris, “The Jury and the Screen: Judges, Lawyers Reflect on Texas’ Experimental Zoom Jury Trial,” Tex. Law., May 20, 2020.

Courts’ authority to use these remote technology systems during the COVID-19 crisis generally came from a combination of emergency orders issued by judicial agencies and existing procedural and evidentiary rules. As emergency orders begin to expire, the preexisting rules may provide authority for continued or expanded use of remote technology.

Existing rules, however, favor live, in-person testimony. For example, the admissibility of hearsay evidence sometimes turns on whether the declarant is available to testify, which can depend on whether the declarant’s testimony can be procured “by process or other reasonable means.” Fed. R. Evid. 804(a)(5). Under Federal Rule of Civil Procedure 32, the use of deposition testimony at trial can depend on whether the witness is available, which can depend on the witness’s “age, illness, infirmity, or imprisonment” or whether the proponent of the evidence “could not procure the witness’s attendance by subpoena.”

Perhaps the most intriguing rule is Federal Rule of Civil Procedure 43(a), which provides that witness testimony “must be taken in open court” absent some exception. Amendments to Rule 43(a) enacted in 1996 authorized courts to receive testimony “by contemporaneous transmission from a different location,” but only “[f]or good cause in compelling circumstances and with appropriate safeguards.” The advisory committee notes to the amendment emphasize the extraordinary circumstances that must exist to justify remote testimony. Mere inconvenience is not enough. The notes emphasize that the “ceremony of trial” can exert “a powerful force for truthtelling,” and the opportunity to assess the credibility of a witness in person is highly valued.

Limited Case Law Interpreting Rule 43(a)

Considering that the amendment to Rule 43(a) permitting remote testimony has been on the books for nearly a quarter of a century, there have been relatively few published opinions interpreting it. The most common setting in which the issue has arisen is multidistrict bellwether trials or class action litigation, where courts permit plaintiffs to use remote transmissions to present live testimony of current or former defense employees who are beyond the subpoena power of the court. See, e.g., In re Xarelto (Rivaroxaban) Prods. Liab. Litig., No. 15-3708, 2017 U.S. Dist. LEXIS 81056  (E.D. La. May 26, 2017); Mulins v. Ethicon, No. 2:12-cv-02952, 2017 U.S. Dist. LEXIS 17555 (S.D. W. Va. Feb. 8, 2017); In re Vioxx Prods. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006).

Interplay Between Rule 43 and Rule 45 Subpoenas and the Effect of the Pandemic

Even though a witness may be beyond the subpoena power of the forum court, he or she effectively will always be within the reach of a Rule 45 subpoena, which extends to 100 miles of where the witness resides, is employed, or regularly transacts business in person. Defendants sometime argue that combining Rule 43(a) and Rule 45 is improper because it essentially gives every district court nationwide subpoena power for purposes of trial. Those arguments have had some success with nonparty fact witnesses or a 30(b)(6) designee. See Ping-Kuo Lin v. Horan Capital Mgmt., LLC, No. 14 Civ. 5202, 2014 U.S. Dist. LEXIS 114631 (S.D.N.Y. Aug. 13, 2014) (Rule 43(a) “does not operate to extend the range or requirements of a subpoena”); Roundtree v. Chase Bank USA, N.A., No. 13-239 MJP, 2014 U.S. Dist. LEXIS 76255 (W.D. Wash. June 3, 2014) (30(b)(6) witness). As noted above, however, with respect to current or former employees in a multidistrict litigation (MDL) or class action setting, courts thus far have been more receptive to allowing the use of remote testimony. See, e.g., In re Actos (Pioglitazone) Prods. Liab. Litig., No. 12-cv-00064, 2014 U.S. Dist. LEXIS 2231 (W.D. La. Jan. 8, 2014); In re DePuy Orthopaedics, No. 3:11-MD-2244-K, 2016 U.S. Dist. LEXIS 195409 at *2.

Against this backdrop, during the COVID-19 pandemic, courts began conducting bench and jury trials using remote transmission technology. Two recent examples illustrate the way in which the issue has arisen. In a case pending in federal court in Idaho, the court granted a motion made weeks before trial allowing the plaintiff to use either remote live transmission or a video deposition to present the testimony of a former employee of the defendant who was 73 years old, diabetic, a resident of Florida, and unwilling to travel to Idaho. Vasquez v. City of Idaho Falls, No. 4:16-cv-00184-DCN, 2020 U.S. Dist. LEXIS 65735 (D. Idaho, Apr. 13, 2020) (good cause existed where concerns of the witness were “unique to this unusual time” and plaintiff could not have reasonably foreseen the pandemic).

A more unusual setting occurred in a case in federal court in Minnesota, where the coronavirus concerns came into play in the middle of a trial. In re RFC and RESCAP Liquidating Tr. Action, 2020 U.S. Dist. LEXIS 44607 (D. Minn., Mar. 13, 2020). After 11 days of in-person testimony in a bench trial conducted over nearly a 6-week period, 2 days of live testimony from the defendant’s final two witnesses remained in late March 2020. One witness lived in New York and the other in Utah. Shortly before this testimony was to occur, a coworker in the plaintiff’s counsel’s office contracted COVID-19, which prompted the closure of the firm’s office.

The defendant moved to continue the trial until it would be safe for the witnesses, all counsel, and the court to reconvene in person. The plaintiff objected, arguing that the length of the delay, which was unknowable, would be unfair and was unnecessary in any event because the court could receive the testimony by deposition or live remote transmission. The defendant argued it would be unfair to permit the plaintiff to present its entire case through in-person testimony, while forcing the defendant to use the inferior form of remote testimony.

Recognizing that the travel concerns of the witnesses were legitimate and the risks of community-spread infection were real, the court nevertheless found that an indeterminate continuance was “untenable” and that receiving the testimony via live remote transmission was an “absolutely preferable” alternative. Because it was a bench trial, the court felt confident it could set aside any potential advantages offered by in-person testimony. Consequently, the court ordered the parties to complete the trial by videoconference from federal courthouses at their respective locations, with the witnesses testifying remotely from their locations in Utah and New York.

Remote Testimony Once In-Person Trials Resume

Even after courts resume in-person trials, it is likely that many witnesses will be reluctant to come to court, especially if that means using mass transportation. Will the courts relax the standards of Rule 43(a) to permit remote testimony in those circumstances? Given the continuing advances in technology that improve the ease and quality of live-streaming transmissions, there seems little doubt that expanded use of remote testimony actually serves and promotes the public policy of Rule 43(a) favoring live testimony, at least when compared with the alternatives of video depositions or reading transcribed testimony.

It is difficult to say, however, whether a witness’s concern about the risk of COVID-19 infection will constitute sufficient justification for permitting remote testimony. Some guidance may come from an unlikely source in the voting rights cases that are developing around the country, in which a key question is whether a voter’s concern about the possibility of becoming infected will be sufficient grounds for absentee voting.

In this connection, courts might give more consideration to whether the proponent of the remote testimony took adequate steps to secure the testimony in advance through a deposition. The advisory committee notes state that parties will have “special difficulty” in showing good cause or establishing a “compelling” case if they could “reasonably foresee” the need for remote testimony. While the unforeseeable nature of the COVID-19 pandemic gave rise to particular unanticipated challenges when it first struck, it will be far more difficult to claim surprise now. If anything, the great uncertainty attendant to the pandemic may impel parties to take more depositions and to be more thorough in their questioning to avoid the risk of a formerly cooperative witness becoming reluctant to attend trial.

Changing Views on “Unavailability”

Assuming some return to normalcy as the pandemic subsides, and notwithstanding recent experience with remote testimony, federal courts may continue to limit the use of remote testimony unless Rule 43(a) is amended to remove the “good cause” and “compelling circumstances” language. However, some state courts were prescient in addressing the viability of live remote testimony well before the pandemic and may be leading the way in how these issues will be considered and dealt with going forward.

For example, after two years of study, the Supreme Court of Virginia adopted Rule 1:27 in January 2020 permitting—indeed, promoting—transmission of live testimony from remote locations. The rule, which took effect on March 15, 2020, provides that trial judges normally should permit a treating medical provider to testify by video unless there is good cause to require in-person testimony. The trial court also “should” use remote testimony if all the parties consent or if a lay witness is more than 100 miles away or out of state. Only the testimony of parties and expert witnesses is subject to an “exceptional circumstances” test for permitting remote testimony. If Virginia is a guide, the long-term prognosis is that “unavailability” may lose much meaning for restricting the opportunity for live testimony.

David C. Kent is counsel with the Dallas, Texas, office of Faegre Drinker Biddle & Reath, LLP.

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