Remote trial testimony was briefly a hot-button issue in the district (on account of the whole plague thing). But in our new, vaccinated, world it has receded to a background issue only rarely surfacing.
So there's not many opinions on exactly what sort of hardships might qualify someone to testify remotely under Rule 43(a). Thankfully Judge Fallon's opinion today in AAG Glass, LLC v. Laminados de Aller, S.A., C.A. No. 21-638-SRF (D. Del. July 15, 2024) (Mem. Order), gives us a few examples of what hardships do not justify remote testimony.
Losing Your Visa After A DUI
Okay, this one is a bit of a gimme. The defendant witness, Roberta Garcia, was a Spanish citizen who had previously been in the US on a visa working at their US facility. He lost that Visa in 2019, following a DUI charge and has apparently been unsuccessful in having it reinstated. The court found this insufficient in light of the lack of a record of continued efforts on this front over the intervening years:
Defendants have been aware of Garcia's visa revocation since 2019, before this case began. More than five years has passed since his visa was revoked. Yet there is no indication that Garcia has since attempted to obtain a U.S. visa that would allow him to testify at trial.
Id. at 3 (internal citations omitted).
Unexplained Travels To Iran
So this one may also seem obvious. Apparently Mr. Garcia took a trip to Iran recently which, the motion suggests, makes it impossible for him to obtain a U.S. visa. Again, Judge Fallon found this insufficient:
Although Defendants include a copy of Garcia's visa, dated June 8, 2024, nothing in the record before the court confirms the exact dates of his travel or a compelling reason for his travel to Iran. At the time Garcia obtained the Iranian visa, he was aware of the July 22 trial date in this matter. Thus, any consequences of his Iranian travel on his ability to testify at trial in the instant case were neither unexpected nor unforeseen. Moreover, the exhibits regarding Garcia's Iranian visa, unaccompanied by any declaration, require the court to presume without proper supporting authority that Garcia is restricted from traveling to the United States.
Id. at 4 (internal citations omitted)
A Litany of Health Conditions
So this one is a bit closer. Another Witness, Manuel Diaz, was 74 years old and complained that his diabetes, heart condition, and other ailments made travel impossible. Judge Fallon disagreed, noting the lack of a declaration from a medical provider:
The list of conditions and medications cited by Diaz in his statement do not definitively establish an inability to testify in person at trial. Instead, he identifies symptoms that would make travel inconvenient and expresses concern about what would happen if a medical emergency occurred during his flight. The attached documentation lists medications and medical conditions, and it includes confirmations of lab and medical appointments. But the record lacks any documentation from a medical professional restricting Diaz from traveling.
Id. at 4-5 (internal citations omitted).
TL;DR you probably have to testify live.
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