Radosti v. Hudson's Bay Company
- Vernon Broderick
- 1:18-cv-12266
- U.S. District Court · Southern District of New York
- 6
In Radosti v. Hudson’s Bay Company, Judge Broderick denied defendants’ request to present two witnesses’ trial testimony remotely by video.
The ruling affects the defendants’ ability to present Blair Zebrowski and Sam Vera as live remote trial witnesses. It leaves the defendants able to seek admission of their deposition testimony, and it does not resolve the underlying claims between Bina Radosti and the defendants.
What happened
In Radosti v. Hudson’s Bay Company, the defendants asked to have Blair Zebrowski and Sam Vera testify at trial by videoconference from Florida and Texas. They cited family health issues, caregiving responsibilities, and the fact that the witnesses could not be compelled by subpoena to travel to the court.
The court denied the request. It found that the defendants had not shown the “good cause” and “compelling circumstances” required for remote testimony under Federal Rule of Civil Procedure 43(a). The court noted that the defendants had not provided sworn statements or medical documentation supporting the witnesses’ inability to travel.
Judge Broderick explained that the denial did not prevent the defendants from presenting the witnesses’ testimony at trial because both had already been deposed. The defendants could designate them as unavailable and introduce their deposition testimony, and the parties were ordered to meet and confer about proposed redactions to a status-conference transcript.
The detailed version
- Radosti v. Hudson's Bay Company · No. 1:18-cv-12266
- Vernon Broderick
- May 4, 2022
Background
The defendants filed a letter-motion asking the court to allow Blair Zebrowski, a former Area Sales Manager, and Sam Vera, a former Assistant General Manager, to testify at trial by videoconference from Florida and Texas. The defendants said the witnesses lived and worked in those states and had immediate family health issues requiring them to remain there. They also stated that neither witness lived within 100 miles of the trial court and therefore could not be compelled by subpoena to testify there.
The plaintiff opposed remote testimony under Federal Rule of Civil Procedure 43(a). The plaintiff argued that the defendants had not shown the required compelling circumstances and suggested that, because both witnesses had already been deposed, the defendants could designate them as unavailable and use their deposition transcripts at trial.
The court ordered the defendants to provide more specific information about the witnesses’ medical circumstances. That information was filed under seal, and the court also considered information discussed at a later status conference. The public opinion provides only general descriptions of the circumstances to protect the witnesses’ privacy.
Legal Standard
Rule 43(a) requires trial testimony to be given in open court unless an applicable rule or statute provides otherwise. It permits a court to allow live testimony from another location by contemporaneous video transmission when there is good cause, compelling circumstances, and appropriate safeguards. The court noted that serious health conditions preventing a witness from traveling can meet that standard, but inconvenience alone generally cannot.
Ruling
The court denied the defendants’ motion. It found that the defendants had not established good cause and compelling circumstances for remote testimony. The court stated that the witnesses’ personal discomfort about traveling during the COVID-19 pandemic, without more, did not satisfy Rule 43(a). Neither witness provided a sworn affidavit or medical documentation describing or substantiating an inability to travel for medical reasons. The court also found no controlling authority allowing remote testimony based solely on caregiving responsibilities.
Because both witnesses had already been deposed and the plaintiff did not object to designating them as unavailable under Federal Rule of Civil Procedure 32, the court explained that the defendants could introduce their deposition testimony at trial. The court therefore concluded that denying live remote testimony would not prevent the defendants from presenting the witnesses’ testimony.
The court ordered the parties to meet and confer and submit any proposed redactions to the transcript of the April 26, 2022 status conference by May 27, 2022.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.