United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
matter comes before the court on pro se plaintiff Melvin
Hale's Motion to Allow Witness Testimony by Telephone or
Video Conference (Doc. 87). Defendants, collectively, have
filed a Response (Doc. 90). And, Dr. Hale has filed a Reply
contends that the court should permit remote testimony in his
upcoming trial. Specifically, plaintiff intends to call three
or fewer witnesses who live more than 100 miles from the
trial in Topeka, Kansas. So, plaintiff cannot compel these
witnesses' attendance by trial subpoena under Federal
Rule of Civil Procedure 45(c). And, plaintiff asserts that he
lacks the financial means to defray travel and lodging
expenses for these witnesses.
response, defendants argue, plaintiff has not satisfied his
burden under Federal Rule of Civil Procedure 43(a)-that is,
defendants assert that plaintiff has not established
compelling circumstances warranting remote testimony, nor has
plaintiff ensured appropriate safeguards. Doc. 90 at 2. The
court agrees and denies Dr. Hale's motion for the reasons
a witness's testimony at trial must be taken in open
court. See Fed. R. Civ. P. 43(a). But, Rule 43 also
“provides that testimony by contemporaneous
transmission (by telephone or videoconference, for instance)
may be taken in open court ‘[f]or good cause in
compelling circumstances with appropriate
safeguards.'” Eller v. Trans Union, LLC,
739 F.3d 467, 477 (10th Cir. 2013) (quoting Fed.R.Civ.P.
inconvenience for the witness does not satisfy the good cause
standard. Gil-Leyva v. Leslie, No. 18-1209, 2019 WL
2651093, at *3 (10th Cir. June 27, 2019). Generally, Rule
43(a) applies when a witness cannot appear in person
“for unexpected reasons, such as accident or
illness[.]” Id. (quoting Fed.R.Civ.P. 43(a)
advisory committee's note to 1996 amendment). In
contrast, other reasons “must be approached
cautiously.” Id. (citation omitted).
court denies plaintiff's motion because he has not
satisfied Rule 43(a)'s good cause standard.
Plaintiff's motion states that he would have to pay for
the witnesses' travel and lodging expenses, indicating
that the witnesses themselves face financial
difficulties. Plaintiff does not identify the potential
witnesses by name, nor does he explain the extent of their
financial difficulties. That said, “financial hardship
isn't the type of ‘unexpected reason[ ]' that
is ‘typically required in a showing of good cause for
telephonic testimony.'” Gil-Leyva, 2019 WL
2651093, at *3 (quoting Eller, 739 F.3d at 478).
Also, Rule 43 applies when the witness cannot appear for
“‘unexpected reasons, such as accident or
illness,' and not when it is merely ‘inconvenient
for the witness to attend the trial.'”
Eller, 739 F.3d at 478 (quoting Fed.R.Civ.P. 43(a)
advisory committee's note to 1996 amendment).
Plaintiff's argument skews toward inconvenience. And,
while plaintiff provides some reason to support his request,
it is not an unexpected reason. The court thus finds
plaintiff's argument unpersuasive.
even if good cause were established, “Rule 43(a) . . .
is by its own terms permissive and not mandatory[.]”
Eller, 739 F.3d at 478. And, “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.”
Fed.R.Civ.P. 43(a) advisory committee's note to 1996
amendment. Plaintiff concedes that remote testimony is
“not a favored solution, ” but asserts that the
witnesses can present testimony to authenticate
documents and establish context. Doc. 87 at 2-3.
Plaintiff does not explain the scope or subject matter of the
context that the unnamed witnesses would offer remotely.
Without more, the court (and the defendants) cannot determine
whether the unnamed witnesses might testify to issues where
the ceremony of trial would encourage truthtelling. The court
thus concludes that the court-even if plaintiff could
establish good cause-would lack detail necessary to decide
how to exercise its discretion under Rule 43(a).
reasons explained above, the court denies plaintiff's
Motion to Allow Witness Testimony by Telephone or Video
Conference (Doc. 87).
IS THEREFORE ORDERED BY THE COURT THAT plaintiff
Melvin Hale's Motion to Allow Witness Testimony by
Telephone or Video Conference (Doc. 87) is denied.