Broden v. Rubinstein, M.D., M.P.H..

Background

Ronald Broden’s counsel asked the court to take two actions before trial: allow Broden’s expert witness, Dr. David Salvage, to testify remotely under Federal Rule of Civil Procedure 43(a), and require non-party Loeb & Loeb LLP to comply with a trial subpoena seeking copies of Broden’s parents’ current will and immediately prior will.

Broden’s counsel said Dr. Salvage and his family had been in Spain for several months and planned to remain there at least through the end of 2025. Defense counsel argued that his voluntary absence did not establish the good cause and compelling circumstances required for remote testimony. Defense counsel also argued that the request concerning Loeb’s subpoena should be denied.

Remote testimony

The court denied the request to allow Dr. Salvage to testify remotely. Rule 43(a) generally requires testimony to be taken in open court but permits testimony from another location when there is good cause, compelling circumstances, and appropriate safeguards. The court explained that the importance of live testimony and the factfinder’s ability to observe a witness face-to-face mean that remote testimony cannot be justified merely because appearing in person is inconvenient.

The court found that Dr. Salvage’s stay in Spain was not an unexpected circumstance such as an accident or illness. The trial date had been set nearly six months earlier, and the court found that travel from Spain to New York would not be especially difficult or expensive. The court also noted that Dr. Salvage was a compensated expert witness whose commitment to testify included making himself available in person.

Subpoena to Loeb & Loeb

The court had previously found Broden’s request to enforce the subpoena premature because Loeb had not yet moved to quash it or indicated that it would not comply. Loeb subsequently objected and stated that it would not produce documents or other information in response to the subpoena.

The court stated that the defendant did not have standing to object to the subpoena based on attorney-client privilege because the defendant was not Loeb’s client. The court nevertheless observed that the subpoena appeared to seek discovery after the deadline for completing discovery had expired. Broden’s counsel represented that the wills were necessary to show that Broden’s parents changed their will after the defendant complained to them about Broden’s online negative reviews of the defendant.

The court directed Broden’s counsel to submit a letter by May 16, 2025, explaining why the subpoena should be enforced. The court stated that it would address the issue at the final pretrial conference on May 20, 2025. Because Loeb objected to the subpoena, the court ordered Loeb to appear through counsel at that conference and directed Broden’s counsel to serve Loeb’s counsel with the order and file proof of service.

Disposition

The court denied the request for Dr. Salvage to testify remotely. It did not decide in this order whether Loeb must produce the subpoenaed wills. Instead, it directed further briefing on enforcement and ordered Loeb to appear through counsel at the final pretrial conference.