WASHINGTON STATE REGISTER

WSR 10-05-090

RULES OF COURT

STATE SUPREME COURT

[ February 12, 2010 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CR 43-TAKING OF TESTIMONY )
)
)
ORDER
NO. 25700-A-948

The Washington State Bar Association having recommended the adoption of the proposed amendments to CR 43-Taking of Testimony, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by not later than April 30, 2010. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 12th day of February, 2010.
For the Court

Madsen, C.J.

CHIEF JUSTICE

GR 9 COVER SHEET

Suggested Amendment
SUPERIOR COURT CIVIL RULES (CR)

Rule 43 - Taking of Testimony

(Allowing for testimony by contemporaneous means)

Submitted by the Board of Governors of the Washington State Bar Association

A. Purpose: In 1996, the following provision was added to Federal Rule of Civil Procedure 43(a): "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." Most states have adopted the substance of this provision. See Greener v. Killough, 1 So.3d 93, 102 (Ala. Civ. App. 2008). A sampling of reported and unreported federal District Court decisions demonstrates that, even though courts respect the general rule that testimony should be taken in person in open court, they will invoke this provision to allow for video or telephonic testimony if necessary to avoid undue hardship and if no party will be prejudiced. See, e.g.:

In re Vioxx Products Liability Litigation, 439 F.Supp.2d 640, 641-44 (E.D.La. 2006) (allowing contemporaneous transmission of testimony where witness possessed information highly relevant to plaintiff's claims, action was a bellwether trial for multidistrict litigation involving thousands of lawsuits over damage allegedly caused by a drug prescribed to millions of patients in every state, the plaintiff steering committee offered to pay witness's travel expenses, the defendant's refusal to voluntarily produce the witness was for purely tactical advantage, and the defendant would not suffer any true prejudice in having witness testify by contemporaneous videoconferencing);

Sussel v. Wynne, 2006 WL 2860664 at 4-(D. Hawaii 2006) (allowing contemporaneous transmission of testimony by a witness in Alabama where it would be difficult and costly for him to appear at a trial in Hawaii);

Dagen v. CFC Group Holdings Ltd., 2003 WL 22533425 (S.D.N.Y. 2003) (allowing contemporaneous transmission of testimony from employees residing in Hong Kong because employer potentially would have suffered incurable prejudice if the court excluded testimony of those witnesses, and the employer raised international travel considerations, legitimate business concerns, and cost rationales for its request); and

Edwards v. Logan, 38 F. Supp.2d 463, 465-68 (D. Va. 1999) (allowing contemporaneous transmission of testimony where the relevant issue was relatively straightforward and thus amendable to effective video presentation, transporting the inmate-witness from New Mexico to Virginia would be an expensive security risk, and staying the action until the prisoner's release could cause a decade-long delay).

Federal appellate courts and appellate courts in states that have adopted the substance of the federal provision apply an "abuse of discretion" standard to review, and generally affirm, trial court decisions to either grant or deny motions to present testimony by contemporaneous transmission. See, e.g.:

El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C. Cir. 2007), cert. den. 128 S.Ct. 1872, 170 L.Ed.2d 744 (2008) (affirming a decision to allow testimony from Egypt where the district court required the plaintiff to "prove he had pursued and repeatedly been denied a visa to the United States (as well as show careful preparations for translation and teleconferencing)");

Air Turbine Technology, Inc. v. Atlas Copco AB, 410 F.3d 701, 714 (11th Cir. 2005) (affirming denial of a motion for video testimony -- "a matter expressly reserved to the sound discretion of the trial court" -- where no compelling circumstances were shown and the motion was brought just one month before trial);

Lawrence v. Delkamp, 750 N.W.2d 452, 455-57 (N.D. 2008) (affirming trial court's decision to disallow telephonic testimony because there were not adequate safeguards in place, including someone on site with the witness to administer the oath); and

Dunsmore v. Dunsmore, 173 P.3d 389, 392-93 (Wyo. 2007) (affirming the trial court's decision to rescind its order to allow telephonic testimony because it was within the court's discretion).

Washington is among the minority of states that has not adopted the substance of this provision. In Kinsman v. Englander, 140 Wn. App. 835, 167 P.3d 622 (2007), the trial court admitted the deposition testimony of an "unavailable" witness. Later in the trial, the court allowed, over one party's objection, that same witness to testify telephonically in rebuttal. The Court of Appeals, Division III, held that telephonic/video testimony is not allowed in Washington unless both parties consent. Id., 140 Wn. App. at 844. The court noted that CR 43 does not have language expressly authorizing such testimony, as does the parallel federal rule. Id. n.8. Accord Greener, 1 So.3d at 102-03 (citing Kinsman to reach the same result in Alabama, which also lacks language similar to the federal rule).

The suggested amendment would add the language found lacking in Kinsman and would expressly give Washington courts the authority to allow testimony by contemporaneous means in an appropriate case, even if all parties do not consent. The suggested language mirrors the federal provision. The drafters of the suggested amendment intend that Washington courts should seek guidance from federal court interpretations of the federal provision and from the 1996 Advisory Committee Note to Federal Rule of Civil Procedure 43 when interpreting this provision. For reference, the Note provides in relevant part:

Contemporaneous 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 truthtelling. 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.

The 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.

Other possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses. Deposition procedures ensure the opportunity of all parties to be represented while the witness is testifying. An unforeseen need for the testimony of a remote witness that arises during trial, however, may establish good cause and compelling circumstances. Justification is particularly likely if the need arises from the interjection of new issues during trial or from the unexpected inability to present testimony as planned from a different witness.

Good cause and compelling circumstances may be established with relative ease if all parties agree that testimony should be presented by transmission. The court is not bound by a stipulation, however, and can insist on live testimony. Rejection of the parties' agreement will be influenced, among other factors, by the apparent importance of the testimony in the full context of the trial.

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. Notice of a desire to transmit testimony from a different location should be given as soon as the reasons are known, to enable other parties to arrange a deposition, or to secure an advance ruling on transmission so as to know whether to prepare to be present with the witness while testifying.

No attempt is made to specify the means of transmission that may be used. Audio transmission without video images may be sufficient in some circumstances, particularly as to less important testimony. Video transmission ordinarily should be preferred when the cost is reasonable in relation to the matters in dispute, the means of the parties, and the circumstances that justify transmission. Transmission that merely produces the equivalent of a written statement ordinarily should not be used.

Safeguards must be adopted that ensure accurate identification of the witness and that protect against influence by persons present with the witness. Accurate transmission likewise must be assured.

Other safeguards should be employed to ensure that advance notice is given to all parties of foreseeable circumstances that may lead the proponent to offer testimony by transmission. Advance notice is important to protect the opportunity to argue for attendance of the witness at trial. Advance notice also ensures an opportunity to depose the witness, perhaps by video record, as a means of supplementing transmitted testimony.

SUGGESTED AMENDMENT

SUPERIOR COURT CIVIL RULES (CR)

CR 43 - Taking of Testimony

(a) Testimony.

(1) Generally. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. 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.

(2) Multiple Examinations. [unchanged]

[(b) - (k) unchanged]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

	In re Vioxx Products Liability Litigation, 439 F.Supp.2d 640, 641-44 (E.D.La. 2006) (allowing contemporaneous transmission of testimony where witness possessed information highly relevant to plaintiff's claims, action was a bellwether trial for multidistrict litigation involving thousands of lawsuits over damage allegedly caused by a drug prescribed to millions of patients in every state, the plaintiff steering committee offered to pay witness's travel expenses, the defendant's refusal to voluntarily produce the witness was for purely tactical advantage, and the defendant would not suffer any true prejudice in having witness testify by contemporaneous videoconferencing);
	Sussel v. Wynne, 2006 WL 2860664 at 4-(D. Hawaii 2006) (allowing contemporaneous transmission of testimony by a witness in Alabama where it would be difficult and costly for him to appear at a trial in Hawaii);
	Dagen v. CFC Group Holdings Ltd., 2003 WL 22533425 (S.D.N.Y. 2003) (allowing contemporaneous transmission of testimony from employees residing in Hong Kong because employer potentially would have suffered incurable prejudice if the court excluded testimony of those witnesses, and the employer raised international travel considerations, legitimate business concerns, and cost rationales for its request); and
	Edwards v. Logan, 38 F. Supp.2d 463, 465-68 (D. Va. 1999) (allowing contemporaneous transmission of testimony where the relevant issue was relatively straightforward and thus amendable to effective video presentation, transporting the inmate-witness from New Mexico to Virginia would be an expensive security risk, and staying the action until the prisoner's release could cause a decade-long delay).

	El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C. Cir. 2007), cert. den. 128 S.Ct. 1872, 170 L.Ed.2d 744 (2008) (affirming a decision to allow testimony from Egypt where the district court required the plaintiff to "prove he had pursued and repeatedly been denied a visa to the United States (as well as show careful preparations for translation and teleconferencing)");
	Air Turbine Technology, Inc. v. Atlas Copco AB, 410 F.3d 701, 714 (11th Cir. 2005) (affirming denial of a motion for video testimony -- "a matter expressly reserved to the sound discretion of the trial court" -- where no compelling circumstances were shown and the motion was brought just one month before trial);
	Lawrence v. Delkamp, 750 N.W.2d 452, 455-57 (N.D. 2008) (affirming trial court's decision to disallow telephonic testimony because there were not adequate safeguards in place, including someone on site with the witness to administer the oath); and
	Dunsmore v. Dunsmore, 173 P.3d 389, 392-93 (Wyo. 2007) (affirming the trial court's decision to rescind its order to allow telephonic testimony because it was within the court's discretion).

© Washington State Code Reviser's Office