Media Glow Digital, LLC v. Panasonic Corporation of North America
- Paul Gardephe
- 1:16-cv-07907
- U.S. District Court · Southern District of New York
- 6
Media Glow Digital v. Panasonic: Judge Gardephe denied both sides’ requests concerning a witness’s trial testimony, including remote testimony and a videotaped trial deposition.
Panasonic Corporation of North America could not take the unidentified witness’s videotaped trial deposition, and Media Glow Digital, LLC and Times Square LED, LLC could not have that witness testify by video conference under these applications.
What happened
In Media Glow Digital, LLC and Times Square LED, LLC v. Panasonic Corp. of North America and Earl B. Lovell-S.P. Belcher, Inc., the parties asked the court to make special arrangements for an unidentified witness at trial. Plaintiffs asked to have the witness testify by video because of a heart condition and concerns about COVID-19 exposure. Panasonic asked to take the witness’s videotaped trial deposition instead.
Plaintiffs objected to Panasonic’s request and said the witness would testify in person if remote testimony was not allowed. Panasonic argued that plaintiffs had delayed their request and had changed positions during the case. Panasonic also said the witness had not been deposed during discovery, which had closed more than four years earlier.
Judge Paul G. Gardephe denied both applications. He denied Panasonic’s request because Panasonic did not show a good reason for failing to depose the witness during discovery. He denied plaintiffs’ request because it was moot in light of the witness’s stated willingness to testify in person and because plaintiffs had not timely shown the compelling circumstances and medical documentation required for video testimony.
The detailed version
- Media Glow Digital, LLC v. Panasonic Corporation of North America · No. 1:16-cv-07907
- Paul Gardephe
- Aug. 11, 2022
Background
Trial was scheduled for September 6, 2022. Discovery had closed on March 29, 2018. Plaintiffs asked the court to allow an unidentified witness to testify live by video because he had been diagnosed with cardiac amyloidosis, which a doctor’s note said placed him at higher risk of developing COVID-19 and made travel to New York City inadvisable. Panasonic opposed remote testimony.
Panasonic later asked to take a videotaped trial deposition of the witness. Panasonic stated that the witness had not previously been deposed and that plaintiffs had said he was an essential witness even though they had not deposed him during discovery. Plaintiffs opposed the request and represented that the witness would appear in person at the September 6 trial if the court did not allow video testimony.
Legal standards
Federal Rule of Civil Procedure 16(b)(4) allows a scheduling order to be changed only for good cause and with the judge’s consent. The court explained that depositions generally cannot be taken after discovery closes unless good cause exists to modify the scheduling order.
Rule 43(a) generally requires trial testimony to be given in open court. It allows testimony from another location by live video transmission when there is good cause, compelling circumstances, and appropriate safeguards. The court also noted that a party seeking remote testimony should ask promptly after learning of the circumstances supporting the request.
Court’s analysis
The court denied Panasonic’s application for a trial deposition. Panasonic had not shown good cause for failing to depose the witness during the six years the case had been pending, including the more than four years since discovery closed. The court also found that Panasonic’s statement that the witness’s testimony was not needed undermined its request for a trial deposition. The ruling did not reopen discovery.
The court likewise denied plaintiffs’ application for remote testimony. First, the court found the application moot because plaintiffs represented that the witness was willing to testify in person. Separately, the court held that plaintiffs had not shown good cause in compelling circumstances under Rule 43(a). Plaintiffs knew about the witness’s medical condition by February or March 2022 but did not request remote testimony until July 4, about one week before the originally scheduled July 11 trial. Plaintiffs also had not submitted medical records showing that the witness was unable to travel or testify in person.
Disposition
The court denied Panasonic’s application for a trial deposition and likewise denied plaintiffs’ application for an order allowing the witness to testify by video conference. The opinion does not state that either application was granted in part or dismissed with or without prejudice.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.