Ashton Woods Holdings L.L.C. v. USG Corporation

Background

The plaintiffs asked to present several witnesses who were outside the state by live-streamed video during trial. They relied on Federal Rule of Civil Procedure 43(a), which allows a court, for good cause and in compelling circumstances with appropriate safeguards, to permit testimony from another location by contemporaneous transmission.

Court’s Analysis

The court held that the request was barred by Federal Rule of Civil Procedure 45. That rule limits the geographic area in which a person may be subpoenaed to attend trial, including generally within 100 miles of the person’s residence, employment, or regular in-person business, and in some circumstances within the state where the person resides, works, or regularly conducts business in person. The court concluded that Rule 43 could not be read to eliminate Rule 45’s geographic limits. It also found no exception allowing the court to treat out-of-state witnesses as within 100 miles of the trial in Oakland, California merely because video-streaming facilities were available in their states.

The court separately concluded that the plaintiffs had not met Rule 43’s requirements. It described this as the ordinary situation in which depositions, including video depositions, are the better way to obtain testimony from a witness beyond the reach of a trial subpoena. The witnesses had been outside the court’s subpoena power throughout the relevant period, and the plaintiffs could have deposed them but chose not to. The court found no unexpected reason for their unavailability and no compelling circumstance on the record.

Disposition

The court denied the plaintiffs’ motion for live-streamed trial testimony. Several non-parties had filed motions to intervene to oppose that motion, along with motions to shorten the time for hearings on the intervention motions. Because the court denied the plaintiffs’ motion, Judge Haywood S. Gilliam, Jr. denied as moot the motions to intervene and the motions to shorten time.