Victims and Witnesses in United States

Witness Testimony by Remote Transmission

Case Law Related to Witness Testimony by Remote Transmission Under Federal Rule of Civil Procedure 43
and Federal Rule of Bankruptcy Procedure 9017

This section reviews federal case law regarding the meaning of “good cause in
compelling circumstances” and “appropriate safeguards” under Federal Rule of
Civil Procedure 43(a), which is made applicable to bankruptcy cases and proceedings
by Federal Rule of Bankruptcy Procedure 9017. As a general matter, the
case law has followed the advisory committee’s lengthy and detailed note to Civil
Rule 43(a).

“Good Cause in Compelling Circumstances” Under Civil Rule 43(a)

Consent

If the parties consent to contemporaneous transmission of testimony, “good cause
and compelling circumstances” may be established with relative ease.2 See, e.g.,
Scott Timber v. United States, 93 Fed. Cl. 498, 500 (2010) (citing agreement of
parties in granting motion for remote testimony by videoconference); In re
Betcorp Ltd., 400 B.R. 266, 272 n.4 (Bankr. D. Nev. 2009) (noting party consent to
remote testimony of two witnesses from Australia but also indicating in dicta that
court could have found good cause based on travel costs for only a half-day of
testimony).

Courts, however, retain discretion to insist on live testimony over the parties’
agreement for any reason, including if the witness is important in the broader
context. See, e.g., In re Mikolajczyk, No. 15-90021, 2015 WL 3505135, at *1 (Bankr.
W.D. Mich. June 3, 2015) (denying unopposed request to allow remote witness
appearances by downstate parties in a case pending on Upper Peninsula of Michigan
because travel required was not unusual in a large district and granting motion
could logically eviscerate the presumption in favor of live testimony for many
cases before the court).

The burden of proving unanimous consent to remote transmission rests with the
party seeking to use the remote testimony. See Garza-Castillo v. Guajardo-Ochoa,
No. 10-00359, 2012 WL 15220, at *2 (D. Nev. Jan 4, 2012) (denying motion based
in part on failure to show agreement of all parties to allow remote testimony).

Medical Issues

The advisory committee’s note to Civil Rule 43(a) refers to unexpected illness as
providing a “persuasive showing” of good cause for remote transmission of a witness’s
testimony in compelling circumstances. Courts will thus generally permit
individuals who are medically unable to attend a hearing or trial to testify from a
remote location. See S.E.C. v. Yang, 2014 WL 1303457, at *5 (N.D. Ill. Mar. 31,
2014) (citing advanced pregnancy, as well as consent of other party, in permitting
remote witness testimony); Sallenger v. City of Springfield, 2008 WL 2705422
(C.D. Ill. 2008) (allowing remote testimony because of a medical condition); see
also In re Emanuel, 406 B.R. 634, 637 (Bankr. S.D.N.Y. 2009) (citing absence of
“health-related reasons” for need to testify remotely as one basis for denying request).
At least one court has cited as a basis for granting a request for remote testimony
the likelihood that traveling to testify in the state where she was raped
would trigger a victim’s PTSD symptoms. See Humbert v. O’Malley, 303 F.R.D.
461, 465 (D. Md. 2014).

When determining whether illness supports the inability to testify, courts will
consider the severity and duration of the illness. If the severity of an individual’s
medical condition becomes an issue, courts may consider medical records in evaluating
the request to testify remotely. See Martal Cosmetics, Ltd. v. Int’l Beauty
Exch. Inc., No. 01-7595, 2011 WL 887591, at *2 (E.D.N.Y. Mar. 11, 2011) (finding
insufficient proof that witness was unable to appear). However, courts have
looked disfavorably on “cursory doctor’s notes,” which are statements by doctors
that the health of the witness could be affected by the witness’s having to appear,
and these notes are generally not sufficient to establish good cause or compelling
circumstance. Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993) (but cf.
Humbert, 303 F.R.D. at 465 (traveling to testify may unnecessarily trigger PTSD
symptoms).

Travel, Generally

Although courts recognize that long-distance travel may pose a serious inconvenience,
the case law is not consistent regarding whether this factor alone should
justify remote testimony. The advisory committee’s note does not specifically address
the burdens imposed by travel. It does, however, note that depositions generally
“provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena.” Fed. R. Civ. P. 43(a) advisory committee’s note. This has left courts with wide discretion regarding whether burdensome
travel obligations provide good cause in compelling circumstances. At least one
court has suggested that courts may be more willing to use their discretion to
grant remote testimony motions for third-party witnesses than for parties themselves.
See Rodriguez v. SGLC, Inc., No. 08-01971, 2012 WL 3704922, at *3 (E.D.
Cal. Aug. 24, 2012); but cf. Lopez v. NTI, LLC, 748 F. Supp. 2d 471 (D. Md. 2010)
(plaintiffs were allowed to testify remotely as a result of international travel
restrictions).

Courts that have granted motions for remote testimony premised on travel obligations
have generally focused on the distances and costs that such travel would
entail, sometimes relative to the witness’s or party’s means. See, e.g., Katzin v.
United States, 124 Fed. Cl. 122, 126 (2015) (citing “substantial expense” a thirdparty
witness located 900 miles from court would incur in terms of time and absence
from medical practice in granting remote testimony motion); Lopez v. NTI,
LLC, 748 F. Supp. 2d 471, 480 (D. Md. 2010) (granting remote testimony motion
as to Honduran plaintiffs in light of plaintiffs’ indigence, high costs of travel, and
safeguards in place); F.T.C. v. Swedish Match N. Am., Inc., 197 F.R.D. 1, 2 (D.D.C.
2000) (labeling travel from Oklahoma to the District of Columbia a “serious inconvenience”
that justifies remote testimony by a witness); In re Rand Int’l Leisure
Prods., LLC, No. 10-71497, 2010 WL 2507634, at *4 (Bankr. E.D.N.Y. June 16,
2010) (citing distances petitioning creditors would be forced to travel—which
ranged from 500 to 7,800 miles for international creditors and 1,100 to 2,482 miles
for domestic creditors—and prior submission of direct testimony by affidavit in
granting motion to appear by video); In re Betcorp Ltd., 400 B.R. at 272 n.4 (noting,
in dicta, that court could have found good cause to permit remote testimony
given the cost of travel from Australia to the United States for only a half-day of
testimony). See also Herrman v. United States, 129 Fed. Cl. 780 (2017) (court
found that the expense of travel from New York to Washington, D.C., did not
qualify as a compelling circumstance).

When courts are looking into the inconvenience and costs of travel, factors such as profession are taken into account. For example, in SEC v. Ferone, the court narrowed the holding in Katzin by ruling that
the professional consequences of a Wall Street investor’s travel did not qualify as
compelling circumstances, whereas the consequences of a doctor’s travel were
sufficient in Katzin. SEC v. Ferone, 2016 U.S. Dist. LEXIS 17085 (N.D. Ill. 2016).
Courts that have denied remote testimony motions premised on travel obligations
have focused on the foreseeable nature of the trip, rather than the distances or
costs at issue. See, e.g., Rodriguez, 2012 WL 3704922, at *3 (denying motion because
costs of travel were “hardly unforeseen,” request was in any event late, and it
was a party, not a third-party witness, who sought to appear remotely); Sille v.
Parball Corp., No. 07-00901, 2011 WL 2680560, at *1 (D. Nev. July 8, 2011)
(denying motion because there was “nothing unexpected concerning the ability of
Plaintiff’s witnesses to attend” and “Norway and New York have remained the
same distance from Las Vegas”).

Other courts have simply noted that remote transmission requires an exceptional case and that ordinary inconvenience and expense will not suffice. See Humbert v. O’Malley, No. 11-0440, 2015 WL 1256458,
at *2 (D. Md. Mar. 17, 2015) (assertions about work and family obligations, devoid
of evidentiary support, and references to the financial expense of traveling
from California to Maryland did not establish compelling circumstances).
Absent other factors, the cost and time required to travel to a courthouse within
the same judicial district is unlikely to provide a basis for remote testimony. See In
re Mikolajczyk, 2015 WL 3505135, at *1.

Restrictions on International Travel

Courts have granted motions for remote testimony by witnesses who are restricted
from entering the United States, although the burden is on the movant to
substantiate the restriction on entry. See, e.g., Jose Gustavo, 2017 WL 1113334
(E.D.N.C. 2017) (court found that international witness from El Salvador was
permitted to give remote testimony because visa issues provided the sufficient
compelling circumstances); El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C.
Cir. 2007) (affirming decision allowing plaintiff to testify by video based upon
proof that his attempts to secure a visa to the United States were all unsuccessful);
Alcalá v. Hernandez, No. 14-4176, 2015 WL 1893291, at *2 (D.S.C. Apr. 27, 2015)
(citing likely inability of witnesses to obtain visas, both for reasons out of their
control and because of their indigent status, in granting remote testimony motion);
Lopez v. Miller, 915 F. Supp. 2d 373, 396 n.9 (E.D.N.Y. Mar. 20, 2013) (witness
deported from and unable to reenter United States legally “easily satisf[ied]”
Rule 43(a)); Dagen v. CFC Grp. Holdings Ltd., No. 00-5682, 2003 WL 22533425, at
*1–2 (S.D.N.Y. Nov. 7, 2003) (granting motion for five witnesses in Hong Kong to
testify remotely based in part on difficulty of obtaining visas for four witnesses
and apparent inability of fifth witness to enter).

But speculative references to difficulties in obtaining a visa or leaving one’s home
country may not create sufficiently compelling circumstances to warrant remote
testimony. See, e.g., Flame S.A. v. Indus. Carriers, Inc., No. 13-658, 2014 WL
4181958, at *2 (E.D. Va. Aug. 21, 2014) (rejecting argument that hypothetical
need for key witness to report for duty in Ukrainian army and similar “inchoate
possibilities” justified remote testimony); S.E.C. v. Yang, 2014 WL 1303457, at *5
(denying remote testimony motion as to certain witnesses because of witnesses’
failure to substantiate claims that they would have difficulty obtaining visas);
Garza-Castillo, 2012 WL 15220, at *1–2 (denying motion to allow remote testimony
by witnesses in Mexico in spite of unsupported statement that visas would
not be granted by consulate); Rodriguez, 2012 WL 3704922, at *3 (denying motion
for remote testimony where the movant claimed the process of securing a visa was
complex, but failed to show any actual attempt to obtain one).

Prejudice

A court may be more likely to grant a motion to allow remote testimony if denial
would seriously prejudice the movant. See, e.g., Flame S.A., 2014 WL 4181958, at
*2 (witness’s “central role” in dispute, and implied prejudice to other party were
he not to testify live, supported denial of remote testimony motion); Dagen, 2003
WL 22533425, at *2 (granting defendants’ motion based in part on conclusion
that defendants would suffer “incurable prejudice” if the court excluded the testimony);
see also Scott Timber, Inc. v. United States, 93 Fed. Cl. 498 (2010). Lack of
prejudice to the opposing party may also support granting a remote testimony
motion. See, e.g., Humbert v. O’Marrey, 303 F.R.D. 461 (D. Md. 2014); Sallenger v.
City of Springfield, No. 03-3093, 2008 WL 2705442, at *1 (C.D. Ill. July 9, 2008)
(granting motion over non-movants’ allegation of prejudice because court found
no “tactical advantage” in having witness testify remotely); F.T.C. v. Swedish
Match N. Am., Inc., 197 F.R.D. at 1 (noting lack of prejudice to non-movant resulting
from video testimony).

But the importance of a witness (and corresponding prejudice if remote testimony
is not permitted) is unlikely, without more, to convince a court to find compelling
circumstances. See S.E.C. v. Yang, 2014 WL 1303457, at *6 (denying motion as to
certain witnesses despite their importance to the proceeding and admonishing the
party for not taking appropriate steps to secure their critical testimony prior to the
eve of trial).

Administrative Cost

The Supreme Court set out in Mathews v. Eldridge that the “government’s interest,
including the function involved and the fiscal and administrative burdens that
the procedural requirement would entail” are to be taken into account when determining
whether due process has been followed. Mathews v. Eldridge, 424 U.S.
319, 335 (1976). Significant financial or administrative costs to the government or
the parties may also constitute a compelling circumstance for a remote testimony
motion. See Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005) (videoconference
used over objection from inmate defendant who required a 120-mile, two-policeofficer
escort, and for witnesses spread across the state); see also Jennings v. Bradley,
419 F. App’x 594 (6th Cir. 2011) (same cost issue for maximum security inmates); United States v. Baker, 45 F.3d 837, 847 (4th Cir. 1995) (referring to government’s
“fiscal and administrative concerns” in a civil commitment hearing and
cautiously noting the economic benefits of using videoconferencing technology).
Perotti v. Quinanes, 790 F.3d 712 (7th. Cir 2015), distinguishes Thornton and provides
an analytical framework for determining when expenses to the state are
“compelling circumstances.”

In Perotti, the court did not allow inmates to testify by teleconference; the economic burden was not compelling because the inmates “were not scattered all over the state” and most parties and witnesses were not
inmates. The opinion sets forth a balancing test with the relevant factors to be considered:

“A court may therefore not simply assume that remote appearance by video conferencing
will necessarily be good enough in any case. The court still must balance
the prisoner’s interest in being present physically in the courtroom and the
government’s interest in having him remain in his place of incarceration.
In balancing those competing interests, the court should still have in mind
how important credibility is to the case, and how remote appearance may
(a) limit the factfinder’s ability to evaluate the inmate’s credibility as a witness,
(b) make it more difficult for the inmate as a party to confront and evaluate the
other witnesses and exhibits, (c) impose a logistical burden on the inmate’s ability
to interact with his counsel, the court, and opposing counsel, and to react on the
fly to unexpected developments. Requiring a prisoner to appear remotely is not a
decision to be made lightly, as we said in Thornton, 428 F.3d at 698, and the court
must make the decision with a realistic appreciation of how much the available
technology will enable all parties to see and hear of [sic] one another, and how
the limitations of video conferencing are likely to impact the presentation of the
inmate’s case, the factfinder’s assessment of the evidence, and the fundamental
fairness of the trial.” [Perotti, 790 F.3d at 725].

Fiscal concerns are usually insufficient on their own to justify good cause. See Terrell
v. United States, 2007 U.S. Dist. LEXIS 72993 (E.D. Mich. 2007) (distinguished
from Baker, 45 F.3d 837, where fiscal and safety concerns were found; here, fiscal
concerns alone did not satisfy good cause).

Foreseeability

“A party who could reasonably foresee the circumstances offered to justify transmission
of testimony will have special difficulty in showing good cause and the
compelling nature of the circumstances.” Fed. R. Civ. P. 43(a) advisory committee’s
note. Notice of a desire to transmit testimony from a different location
should be given as soon as the reasons are known. Id.

Consistent with the advisory committee’s note, parties who are aware of the need
for remote testimony but do not file timely motions with the court appear unlikely
to succeed on their Civil Rule 43(a) motions. See, e.g., Eller v. Trans Union, LLC,
739 F.3d 467, 478 (10th Cir. 2013) (emphasizing trial court discretion regarding
remote testimony and citing foreseeability as a basis for affirming district court’s
denial of remote testimony motion); Air Turbine Tech., Inc. v. Atlas Copco AB,
410 F.3d 701, 714 (Fed. Cir. 2005) (affirming denial of remote testimony motion
on basis that movant unnecessarily waited until one month before trial to submit
the motion); Flame S.A., 2014 WL 4181958, at *3 (denying remote testimony motion
filed after close of discovery and “just before trial” on the basis, among others,
that the need for relief was foreseeable); S.E.C. v. Yang, 2014 WL 1303457, at *6
(denying motion because, among other things, purported difficulties in obtaining
a visa were knowable in advance and party failed to take deposition during discovery
period); Niemeyer v. Ford Motor Co., No. 09-2901, 2012 WL 5199145 (D.
Nev. Oct. 18, 2012) (denying remote testimony motion, which was filed after
court declined to permit untimely deposition of plaintiffs’ witness, because the
“quandary” in which plaintiffs found themselves was of their own making);
Golden Dawn Corp. v. Neves (In re Neves), No. 09-33043, Adv. Pro. No. 10-02122,
2014 WL 7012674, at *7 (Bankr. S.D. Fla. Dec. 11, 2014) (citing Niemeyer and
denying remote testimony motion for similar reasons); In re Emanuel, 406 B.R. at
637 (citing absence of “unexpected” reasons for need to testify remotely as one
basis for denying request made by disbarred fugitive lawyer who sought to avoid
in-person appearance for fear of being arrested).

Other Matters

Other issues that arise in a particular case may also inform a decision on whether
to permit remote testimony. See, e.g., Humbert, 303 F.R.D. at 465 (permitting remote
testimony by witness who, among other things, was responsible for schooling
her autistic child); Mitchell v. Anderson (In re Mitchell), 545 B.R. 209, 214
(Bankr. N.D. Ohio 2016) (referencing court’s arrangement for plaintiff and defendant,
who were barred by state court order from direct contact, to appear from
separate remote locations with live video between the court and those locations);
In re Skoglund, No. 14-90050, 2014 WL 1089865, at *1 (Bankr. W.D. Mich. Mar.
19, 2014) (referencing grant of permission to testify remotely based on section
362(c) time constraints, court’s schedule, and distance between courthouses);
Dagen, 2003 WL 22533425, at *2 (granting motion in part based on the fact that
five witnesses in Hong Kong constituted a “large portion” of defendants’ labor
force and flying them to the United States to testify would seriously harm their
business).

Appropriate Safeguards Under Civil Rule 43(a)

Courts are required to establish appropriate safeguards before allowing videoconferencing.
These safeguards should ensure that the communication will have
all of the qualities of live testimony. Thornton, 428 F.3d at 698–99. Some of these
safeguards are indispensable to the fairness of the proceeding. Parties may
propose other safeguards, and the court may require any safeguards it deems necessary.
See, e.g., Sprint Nextel Corp. v. Yoak, No. 13-01292, 2014 WL 6796074, at
*2 (E.D. Mo. Dec. 2, 2014) (directing counsel to confer as to appropriate
safeguards).

Ability to Identify the Witness, Listen, and Observe; Cross-Examination

The court must be able to identify, communicate with, and judge the demeanor of
the witness. Fed. R. Civ. P. 43(a) advisory committee’s note; see also Jennings, 419
F. App’x at 598 (affirming order regarding video testimony and noting, with respect
to safeguards, that “[t]he jury could listen to the witnesses and observe their
demeanor, [the plaintiff] could question them, and the transmission was instantaneous”);
Lopez, 915 F. Supp. 2d at 396 n.9 (noting that everyone in the courtroom
could see and hear the witness and that the opposing party had opportunity for
cross-examination).

Often, courts will test their videoconferencing equipment prior to and during the
proceeding to ensure that communication with the witness is seamless. See, e.g., In
re Rand Int’l, 2010 WL 2507634, at *5 n.3 (noting requirement that parties conduct
tests of connection and technology before court would rule on videoconference
motion and further requiring that movants demonstrate compatibility of
their conferencing protocols and technology with those of the court); Virtual Architecture,
Ltd., 2012 WL 388507, at *2 (referring to judge’s testing of transmission
quality, confirming witness’s ability to see and hear the court, and evaluating
other aspects of videoconferencing system prior to commencing trial). If the
quality diminishes after establishing the connection, the court may decide to terminate
the transmission and strike the testimony from the record. In re Rand Int’l,
2010 WL 250763, at *6.

Courts should insist, to the extent possible, that the time and structure of the remote
testimony be established in advance of the hearing in order to plan for
proper examination. Id. If parties will use documents in the examination, the documents
should be provided to the court and parties in advance. Id. at *5. Parties in
videoconferences have also previously used fax machines to send documents in
real time. See Valenzuela-Gonzalez v. U.S. Dist. Court for Dist. of Arizona, 915
F.2d 1276 (9th Cir. 1990).

Private Attorney–Client Communication

Videoconference technology must not preclude attorneys from communicating
privately with their clients, even if the two are in different physical locations.
While videoconferencing may force an attorney to choose between being with her
client and standing before the judge, Rusu v. U.S. I.N.S., 296 F.3d 316, 323 (4th
Cir. 2002), it may not otherwise come between their communications. Many remote
transmission technologies actually allow for private communication during
remote transmission. See Valenzuela-Gonzalez, 915 F.2d at 1277. Or attorneys
may speak with clients “offline,” for example, on a private telephone. United States
v. West, No. 08-669, 2010 WL 3324886 (N.D. Ill. Aug. 18, 2010). The key point is
that the system the court or the parties use may not restrict the attorney’s ability
to communicate freely with his or her client.

In international cases, the government may be ordered to retain local counsel who
would represent a defendant’s interest during the deposition of witnesses overseas.
United States v. Csolkovits, 794 F. Supp. 2d 764 (E.D. Mich. 2011) (court ordered
the government to pay reasonable attorney fees and to retain local Bahamian
counsel to represent defendant’s interest during depositions in the
Bahamas).

Avoiding Undue Influence; Limiting the Persons in the Room

The court must also adopt procedures to ensure that the witness is protected from
undue influence by other persons during the videoconference. Fed. R. Civ. P.
43(a) advisory committee’s note.

This may be accomplished by limiting who is present with the remote witness or
by requiring the witness to be alone. See, e.g., Lopez, 915 F. Supp. 2d at 396 n.9
(noting that “everyone in the courtroom was able to see and hear [the witness]
and the people with him”); Scott Timber, Inc., 93 Fed. Cl. at 501 (approving as a
reasonable safeguard the requirement that no one other than the witness be present
during remote testimony); In re Rand Int’l , 2010 WL 2507634, at *5 (limiting
who could be present with the witness during remote testimony to an attorney
who was prohibited from conferring with the witness, a videoconference operator,
and a translator, if necessary).

Connection quality may also affect the court’s ability to limit undue influence.
The number of cameras and quality of transmission help to ensure that the witness
is not being influenced or coerced by any other party in the room. Some
courts have also opted to conduct videoconferences exclusively from government
buildings, which may ensure freedom from undue influence.

The Federal Rules of Evidence and Remote Transmission

The Federal Rules of Evidence, which also apply in matters arising under the
Bankruptcy Code (see Fed. R. Bankr. P. 9017), further inform how parties may
offer testimony. Indeed, Civil Rule 43 expressly subjects its “open court” requirement
to the Federal Rules of Evidence: “the witnesses’ testimony must be taken in
open court “unless a federal statute, the Federal Rules of Evidence, or other rules
adopted by the Supreme Court provide otherwise.” Fed. R. Civ. P. 43(a)
Evidence Rule 611 grants judicial discretion over examinations and evidence. The
rule provides, in pertinent part:

“(a) Control by the Court; Purposes. The court should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so
as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.”

Federal courts have interpreted Rule 611 as granting federal trial courts “wide latitude”
over the mode and order of presenting evidence. Manley v. AmBase Corp.,
337 F.3d 237, 247 (2d Cir. 2003); Bankr. Evid. Manual § 611:1. When judges’ exercise
of such latitude arguably conflicts with Civil Rule 43(a)—most commonly in
connection with testimony by declaration in bankruptcy proceedings—courts
have generally deferred to the discretion afforded by Rule 611. See, e.g., Doan v.
Tong (In re Duc Doan), No. 06-1428, 2007 WL 7535061, at *6 (B.A.P. 9th Cir.
Aug. 10, 2007); see also Saverson v. Levitt, 162 F.R.D. 407, 409 (D.D.C. 1995);
Lewis v. Zermano (In re Stevinson), 194 B.R. 509, 511 (Bankr. D. Colo. 1996);
Bankr. Proc. Manual § 9017:2 (“To the extent there is any inconsistency between
Civil Rule 43 and the Federal Rules of Evidence, the Rules of Evidence control.”)
Evidence Rule 611 thus provides federal courts with another tool for controlling
the means of presenting evidence, even where Civil Rule 43 might otherwise restrict
the use of contemporaneous transmission from an out-of-court location.

Witness Testimony