Etienne Jean Poix v. Espaillat Santana

Background

Petitioner Joseph Marcel Etienne Jean Poix moved for permission for himself and certain witnesses to testify remotely at an evidentiary hearing scheduled for August 17, 2022. In an earlier order, the Court allowed Petitioner to testify remotely but denied permission for additional witnesses because he had not explained why remote testimony was necessary. The Court allowed him to renew that request with supporting information.

Petitioner then asked for three witnesses—Francisco Alberto Martinez Pujols, Barnabas Laurent, and Ruben Ventura—to testify remotely. The opinion states that the witnesses reside in or were located in the Dominican Republic. Respondent Susibel Altagracia Espaillat Santana had until August 12 to oppose the renewed motion but did not file an opposition.

Reasoning

Federal Rule of Civil Procedure 43(a) allows testimony from another location by live transmission when there is good cause, compelling circumstances, and safeguards for the testimony. The Court found those conditions satisfied because the witnesses would otherwise need to travel internationally to New York City on short notice; the COVID-19 pandemic was ongoing; the matter required an expeditious resolution; and international travel would be difficult and expensive.

Ruling and safeguards

The Court permitted Martinez Pujols, Laurent, and Ventura to testify by video at the August 17 hearing. Each witness had to be sworn remotely, and the testimony would have the same effect as testimony given under oath in the courtroom. Petitioner’s counsel was responsible for ensuring that the remote technology worked and that the witnesses received hard copies of exhibits before the hearing. Respondent’s counsel had to prepare exhibit binders for cross-examination and provide two copies of each binder to opposing counsel by August 15. Petitioner’s counsel then had to provide one copy to the relevant witness.

The binders had to remain sealed until the witness finished direct testimony. Each witness had to be positioned so that the witness could see the video screen and be seen by the Court. No one else could be in the room, and the witness could not have documents within sight or reach except exhibits counsel planned to use.

If the binders could not be delivered in time, counsel had to discuss alternative procedures, including electronic delivery of exhibits during testimony or postponing the witnesses’ testimony. Counsel had to be prepared to address those alternatives at the August 15 final pretrial conference if necessary.