Rowe v. Google LLC

Background

Google asked for permission for its trial witness, Jess Swale, to testify remotely under Federal Rule of Civil Procedure 43(a). The opinion identifies Swale as an Administrative Business Partner at Google and says she resides in California. Google designated her to testify about, among other things, her interactions with the plaintiff. She had not been deposed in the case.

Google represented that Swale was undergoing medical treatments requiring frequent and sometimes unscheduled visits to a doctor’s office in California through October 2023. Google said those treatments required her to remain in the area and provided a doctor’s letter supporting the request. Google also asked that the letter be made available for the court’s private review if necessary to protect Swale’s medical information. The plaintiff did not oppose the request.

Legal standard

Rule 43(a) allows a court, for good cause and in compelling circumstances, to permit testimony in open court by live, synchronized transmission from another location, subject to appropriate safeguards. Google argued that modern videoconference technology would provide those safeguards and that Swale’s medical condition and resulting travel restrictions established good cause.

Ruling

Judge Rearden found good cause to permit Swale to testify remotely at trial and granted the application. The court directed the Clerk of Court to terminate ECF No. 311. The order did not state any additional restrictions or safeguards for the remote testimony.