Remote Testimony Preferable to Delayed Trials: U.S. District Court

Pushing for remote expert witness examinations due to COVID-19, judges are finding that the benefits outweigh the objections of attorneys who believe videoconferencing and other remote technologies cannot fully replicate a live trial. The trend may subside as this pandemic weakens, but expect it to be far more prevalent than the past as the courts become accustomed to the technology, notwithstanding the U.S. Supreme Court's “toilet flush” moment.

A case in point, in re RFC & ResCap Liquidating Tr. Action, No. 013CV3451SRNHB, 2020 WL 1280931, (D. Minn. Mar. 13, 2020), after the defendant, Primary Residential Mortgage, Inc. (PRMI) learned of the temporary closure of the New York office of the plaintiff's law firm due to one of its attorneys contracting COVID-19, PRMI contacted its two final expert witnesses who subsequently requested that they not be ordered to travel to Minnesota to provide testimony, even though the infected attorney was not a member of the trial team for the plaintiff, ResCap Liquidating Trust (ResCap).

ResCap responded by proposing that the trial continue as scheduled, adding safety measures to reduce the risk of transmitting the virus, or alternatively that the expert witnesses testify by video conference.

PRMI objected, contending that it would be “patently unfair” to its expert witnesses. PRMI's economics expert witness, Dr. Justin McCrary¹, had a “compelling interest in presenting his testimony in person, just as Plaintiff did with respect to its expert.” Dr. McCrary's ability to convey his testimony would be hindered if done by videoconference, PRMI argued.

PRMI also objected to the suggestion that the testimony of its residential mortgage expert witness, James Crawford,² be submitted by deposition. PRMI contended that, because it had planned to present Crawford's live testimony at trial, it did not ask him questions on redirect during his deposition.

PRMI suggested instead that the final two days of trial be rescheduled.

In her decision, U.S. District Court Justice Susan Nelson quoted precedents that noted “[v]ideoconference proceedings have their shortcomings”, the “ability to observe demeanor, central to the fact-finding process, may be lessened,” and “remote transmission [of testimony] is to be the exception and not the rule.”

The Justice then noted, however, that advances in technology had minimized those concerns from precedents of some 15 to 20 years ago. Current technology “permits ‘the jury [or, in a bench trial, the Court] to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration[.]'” Compelling circumstances (eg: COVID-19) “justify the use of contemporaneous remote video testimony … as opposed to postponing the trial any further.”

Even though none of the attorneys involved in the case had been identified as being in direct contact with anyone infected with COVID-19, Justice Nelson was sympathetic to the concerns of the expert witnesses. That said, the Court recognized the need for “appropriate safeguards” to “ensure accurate identification of the witness and that protect against influence by persons present with the witness,” although no specific safeguards were identified in the decision.

Justice Nelson was unpersuaded by PRMI's assertion that the Dr. McCrary would be severely hindered in conveying his testimony by videoconference. The Court was confident that it could adequately understand the testimony, although admitting that its concerns “would perhaps be hightened” if it were a jury trial rather than a bench trial.

Lastly, the Court found that the use of “[c]ontemporaneous transmission” for remote testimony is absolutely preferable over “an attempt to reschedule the trial[.]” To delay the trial would prejudice the plaintiff ResCap by giving PRMI an additional seven to eight weeks to prepare their damages expert. And postponing the trial to have expert witnesses appear in person “could merely postpone the possibility of infection at a later date, which itself might require additional delays.”

Based on the advise of the District Court's IT staff, Justice Nelson found that the most reliable, secure video link could be obtained at other federal courthouses and instructed the parties to conduct their direct and cross examinations from the local federal courthouses of their choice. The Court's IT videoconferencing staff would provide links allowing all locations to be seen on split screens, simultaneously.

Remote testimony is still the exception to the rule, but it is undoubtedly becoming more common during this pandemic, and will likely remain so, post-pandemic. While Chief Justice John Roberts may have been miffed that the Supreme Court's first live telephone arguments were most noted for the sound of a “toilet flush,”³ Court scholars expect remote arguments to continue for the remainder of the pandemic, although it is unlikely the Court will retain the livestreamed audio. Those less magisterial courts are expected to strongly embrace remote technology, especially videconference technology, as a means to avoid court delays exacerbated by the pandemic.

How “hindered” expert witnesses may be in conveying their opinions via videoconference versus being in person on the stand will of course depend in part on the opposing counsel's ability to confront experts virtually, a judge's (or jury's) ability to evaluate the remote witnesses' credibility and the expert's own videogenic gifts, or skills.