Steven K. Davidson, Michael J. Baratz, Jared R. Butcher and Molly Bruder Fox | Steptoe & Johnson
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement.
As the COVID-19 related health risks posed by in-person proceedings continue to persist, courts and litigants must decide how best to proceed with civil litigation—in-person or virtually. While parties and courts will generally prefer in-person depositions and testimony, existing procedural and evidentiary rules permit remote depositions (Fed. R. Civ. Pro. 30(b)(4)) and video conference in-court testimony (Fed. R. Civ. Pro. 43(a)) or provide for the ability of parties to admit former testimony of “unavailable” witnesses (Fed. R. Evid. 804).
Remote Depositions (Fed. R. Civ. Pro. 30(b)(4))
Rule 30(b)(4) of the Federal Rules of Civil Procedure provides as follows:
“(4) By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.” Importantly, if the parties agree by stipulation, a deposition may be taken by remote means without any court intervention.
Given the current circumstances of COVID-19, recent cases have explained the standards by which courts will consider motions for depositions by remote means. Courts engage in a two-part inquiry: (1) the party seeking remote depositions must advance a legitimate reason; and (2) the burden shifts to the opposing party to make a “particularized showing” that remote depositions are prejudicial. Swenson v. GEICO Cas. Co., No. 219CV01639JCMNJK, 2020 WL 4815035, at *2 (D. Nev. Aug. 19, 2020) (internal citations omitted). If the party opposing remote depositions cannot show a “particularized showing,” then the court should grant the motion. Id.
Courts across the nation have recognized “pandemic conditions” and “physically distancing orders related to the current pandemic” as legitimate reasons for holding depositions remotely. Swenson, 2020 WL 4815035, at *5; Lee v. Dennison, No. 2:19-CV-1332-KJD-DJA, 2020 WL 4809430, at *4 (D. Nev. Aug. 18, 2020) (“[I]n light of the circumstances occurring around the world with the COVID-19 pandemic, the court will permit the deposition to be conducted via remote means . . . .”); Chase-Morris v. Tubby, No. 65927/2019, 2020 WL 4516920, at *4 (N.Y. Sup. Ct. Aug. 3, 2020) (“New York’s trial level courts are in accord . . . [and] conclude that virtual depositions do not cause undue hardship in light of the technology currently available and the serious health risks posed by the COVID-19 virus.”).
In-Court Testimony by Remote Means (Fed. R. Civ. Pro. 43(a))
Not only are courts authorizing deposition by remote means, they also are permitting testimony in court by virtual means. Rule 43 of the Federal Rules of Civil Procedure provides that “[a]t 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 US 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.” Id. (emphasis added).
The Advisory Committee Note on the 1996 Amendment comments that
“[c]ontemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. 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 truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.”
As if the Committee predicted a pandemic, it found that “[t]he most 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 remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that other—and perhaps more important—witnesses might not be available at a later time.”
Courts have started to hold bench trial as permitted under Rule 43(a) taking testimony via “contemporaneous transmission.” See Gould Elecs. Inc. v. Livingston Cty. Rd. Comm’n, No. 17-11130, 2020 WL 3717792, at *4 (E.D. Mich. June 30, 2020) (proceeding with a bench trial via virtual testimony); In re RFC & ResCap Liquidating Trust Action, ––– F. Supp. 3d ––––, ––––, 2020 WL 1280931, at *2, *4 (D. Minn. Mar. 13, 2020) (“COVID-19’s unexpected nature, rapid spread, and potential risk established good cause under Rule 43(a) for conducting the final two days of a six-week bench trial by videoconference.”); Argonaut Ins. Co. v. Manetta Enters., Inc., No. 19-000482, 2020 WL 3104033, at *2-3 (E.D.N.Y. June 11, 2020) (exercising court’s discretion under Rule 43(a) over one party’s objections to order that the entirety of a three-day bench trial be conducted via videoconference). As the District Court for the Eastern District of Michigan commented: “It remains uncertain when the courthouse will reopen to staff members, let alone resume public proceedings. In light of the grave and unprecedented public health concerns at issue, it is unlikely that an in-person bench trial could safely and realistically occur in a courtroom in the foreseeable future. . . . Consequently, proceeding with a bench trial by way of videoconference is preferable to the uncertainty of awaiting the reopening of the courthouse to the public.” Gould Elecs. Inc., 2020 WL 3717792, at *4.4.
Arbitration tribunals have taken a similar approach, according to a recent post on Kluwer Arbitration Blog, by holding virtual hearings.
“Unavailable” Witnesses (Fed. R. Evid. 804)
In addition to facilitating live testimony via remote means, the “unavailability” hearsay rules permit the use of deposition testimony when a witness is considered unavailable due to illness. Federal Rule of Evidence 804(a)(4) provides that hearsay is not excluded if the declarant during the COVID-19 pandemic “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness . . . .” Fed. R. Evid. 804(a)(4).
Whether or not a witness is unavailable for purposes of the rule is largely a fact-based inquiry and the burden of proof falls on the proponent of the hearsay evidence, Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1317 (11th Cir. 2013) (). Additionally, proponents of hearsay that seek to have a witness deemed unavailable due to illness must provide real medical evidence of the witness’s infirm condition. United States v. Yida, 498 F.3d 945, 962 (9th Cir. 2007). However, even a simple doctor’s note attesting to the witness’s inability to testify will suffice. See Finzie v. Principi, 69 F. App’x 571, 573 (3d Cir. 2003) (affirming the district court’s “respectful deference” to a doctor’s note stating that the witness’s medical condition rendered him unavailable to testify); United States v. McGuire, 307 F.3d 1192 (9th Cir. 2002) (finding it appropriate for the district court to have relied on a doctor’s note stating that the 28-weeks pregnant witness was unable to endure the stress of testifying).
In deciding whether or not a witness is unavailable under Rule 804(a)(4), some courts consider several factors. These include: “the nature of the infirmity, the expected time of recovery, the reliability of the evidence concerning the infirmity, and other special circumstances.” McGuire, 307 F.3d at 1205. In addition, some courts also consider the importance of the absent witness to the case and the nature and extent of the prior cross-examination. Ecker v. Scott, 69 F.3d 69, 72 (5th Cir. 1995); see also United States v. Bremers, 54 F. App’x 591 (5th Cir. 2002); United States v. Faison, 679 F.2d 292, 297 (3d Cir. 1982).
Availability under Rule 804(a)(4) also turns on the witness’s ability to testify, which can be determined by the severity and duration of the illness. Generally, the rule suggests that witnesses should testify unless doing so would “seriously damage their already precarious health.” United States v. McGowan, 590 F.3d 446, 454 (7th Cir. 2009); see also 30B Jeffrey Bellin, Federal Practice & Procedure § 6967 (2020 ed.).
Given the fact-based nature of the Rule 804(a)(4) inquiry, courts are likely to reach different results depending on a witness’s situation during COVID-19. There are those who are at a normal risk, are not sick, and are comfortable traveling. There are those who are at a normal risk, are not sick, but who are afraid of traveling. There are those who are not sick but have comorbidities that put them at an increased risk of severe illness. There are those who have mild cases of coronavirus. And there are those who are currently hospitalized, or who have been recently hospitalized, with the coronavirus. Courts will likely weigh whether the witness is simply trying to avoid testifying, which would not amount to unavailability, versus particularized, and justified concerns. Rule 804(a)(4).
Some people, while presently not sick with the coronavirus, may have other conditions that put them at an increased risk of severe illness or death should they contract it. In fact, over 86% of people who have died from coronavirus had at least one comorbidity. Thus, having a comorbidity puts those people at significant risk when traveling and interacting with others. As in Yida, while a witness may have a condition that puts him at increased risk of severe illness or death, it is not sufficient for him to just say that he has a condition; rather, in order for the court to consider deeming him unavailable, there must be actual medical evidence of the condition. With such proof, the factors discussed previously (the nature of the illness, the duration of the illness, the reliability of medical evidence, and special circumstances), tend to weigh in favor of considering the witness with a comorbidity unavailable. The nature of the “illness” in this case is a comorbidity which puts the witness at an increased risk of severe illness or even death.
While just having a condition that makes traveling, or life in general, riskier for the witness may not always be sufficient for unavailability in normal times, the world is in the midst of a pandemic and is without a vaccine for this particular illness. People in general, and especially people with the conditions mentioned above, are being strongly encouraged to stay home and to take extra precautions when around other people. Given these unprecedented circumstances, it would seem likely that a court would deem someone with a comorbidity unavailable under Rule 804(a)(4) given the significant risks that travel and exposure to others present to them at this time.
Most people infected with the coronavirus only experience a mild sickness—out of every 100,000 people in the United States, only 113.6, or 0.11%, are hospitalized. Those fighting a mild case of the coronavirus typically recover within one to two weeks and do not require a hospital stay. Even though ordinarily these symptoms may not excuse live-testimony, it is likely that a person who has COVID-19 would be deemed unavailable.
Throughout the coronavirus pandemic, special attention has been paid to those who are not sick themselves but who have a responsibility to care for another. With respect to whether these caregivers can be considered unavailable under Rule 804(a)(4), the relevant question is whether Rule 804’s five criteria for unavailability are exclusive. The discussion and holdings in Acosta and Nelson seem to indicate that the answer is yes, Rule 804’s criteria are exclusive. Arguably, because the Rule explicitly lists five specific criteria for unavailability, it does not include any additional criteria—reasoning which both cases seem to support. On the other hand, while there is no case law supporting the proposition that sickness of another falls within Rule 804’s unavailability criteria, courts could be more open to deeming caregivers as unavailable given the exceptional circumstances.
An additional consideration arising from the coronavirus pandemic is that many states require those traveling from certain other states to self-quarantine for a period of 14 days before entering society within that state. However, there is no law discussing the impact of state travel restrictions on unavailability under Rule 804. In the situation where a witness is required to quarantine for 14 days before testifying, it may be a better alternative to consider allowing them to testify via video conference, as discussed above.