Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) [Mexico] [Federal & State Judicial Remedies][Testimony by Video]

In Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) the Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two  children, F.C.G., his nine-year old son, and A .C.G., his two-year-old son.   Because of his inability to be present in Court to testify, Petitioner filed a Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by  Skype or telephone under Rule 43(a). As good cause for permitting him to do so,  Petitioner argued that he and Mr. Monterosas cannot travel because: they likely would be unable to obtain a passport or visa to travel to the  United States, and; both were financially unable to travel to the United States. Petitioner was granted leave to proceed in the District Court without prepaying costs in part because he makes roughly ten-thousand dollars per  year, below the poverty guidelines. Petitioner argued that appropriate safeguards would be present to  ensure compliance with the mandates of Rule 43(a), such as his accurate identification  by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid  interruptions during the trial.

The District Court granted the motion. It observed that Rule 43(a) permits a court to take remote  testimony "[f]or good cause in compelling circumstances and with appropriate  safeguards." Courts within this jurisdiction have applied Rule 43(a) 
to allow parties and witnesses to testify remotely.  Courts applying Rule 43(a) have established several situations justifying a court in  permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g.,  El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C.Cir.2007) (finding remote testimony from Egypt appropriate  when the witness could not obtain a visa to enter the United States); Haimdas v.  Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y.2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F. App'x 567 (2d Cir.2010). Other justifications include the burden of international travel, e.g.,  Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.2010),FN3 and even the impact that traveling will have on one's business, e.g.,  Dagen v. CFC Grp. Holdings Ltd, No.
00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).

  Coupled with the general relaxation of procedural rules to promote conformity with the  overarching goals of the convention, i .e., the expedient return of the children, sufficient cause existed for the Court to grant the Parties' request. It found that Petitioner and Mr. Monterosas were likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by an experienced immigration attorney who submitted a declaration in response to  Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, the attorney opined that it was  likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner did not have a valid passport, he would not be able to even apply for the visa.  Therefore, the Court found Petitioner and Mr. Monterosas' inability to obtain a visa and  their financial inability to travel satisfied the "good cause in compelling circumstances" to  permit their testimonies by Skype or telephone under Rule 43.

The court found that the Parties had also shown that appropriate safeguards were in place. Fed. Rules Civ. P. 43(a). The advisory committee's notes to Rule 43(a) suggest that  appropriate safeguards should be in place to ensure:  (1) Accurate identification of the witness;  (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. Several examples of procedures used to satisfy the rule include: requiring that a notary identify the witness and swear that witness in  remotely.  Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008  WL 5100313, at *1 n. 12 (W.D.Wash. Dec. 3, 2008); ensuring that the witness is alone in the room and has been provided with the documentary evidence in advance.  Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 501 (Fed.Cl.2010); and requiring the movant to pay all costs associated with the remote testimony and   requiring that it be tested with the Court's IT personnel prior to the trial it  which it is  used.  Monserrate v. K .K. Mach. Co., No. 10-3732, 2013 WL 1412194,  at *4  (E.D.N.Y. Apr. 8, 2013).

          The court directed that the following procedural safeguards be in place to ensure that Petitioner and Mr. Monterosas' remote testimony will satisfy Rule  43(a): “Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary's  local  office in Cordoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by  8:30 AM EST; When at the appropriate local office, Petitioner and Mr. Monterosas will  provide sufficient documentation to a consular official who will verify their  identities with the  Court prior to their testimony;  Petitioner and his counsel will troubleshoot any problems with the technology  in  advance of the trial, and will work with the translator and Court/Consular  staff to ensure that he and Mr. Monterosas can be heard and understood;  Petitioner and Mr. Monterosas will testify separately, in a closed room, free  of any outside influence (both in-person and through other technological means)  on their testimonies; All documentary evidence presented to Petitioner and Mr. Monterosas will be  marked prior to the trial and provided to them to facilitate their testimony;  and Petitioner (through counsel) will pay any costs associated with the remote  testimony.”