Tuesday, May 9, 2017
Salguero v. Argueta, 2017 WL 1113334 ( E.D.N.C, 2017)[El Salvador] [Remote Testimony]
In Salguero v. Argueta, 2017 WL 1113334 ( E.D.N.C, 2017) Petitioner sought return of his five-year-old daughter, S.M.M.F. (the “child”) to El Salvador, her home country. The district court granted the motion by Petitioner pursuant to Fed. R. Civ. P. 43(a) that the Court permit him and other witnesses residing in El Salvador to testify by video-conference or telephone at the hearing. Petitioner stated that he intended to call two witnesses to testify in support of his Petition. One was Petitioner’s Salvadorian counsel who intended to testify regarding the parties’ divorce and the subsequent proceedings. A second was Petitioner’s expert witness—a Salvadorian family law attorney. Both witnesses resided in El Salvador. Petitioner explained that he was financially unable to travel to the United States for this testimony and would likely be unable to obtain a visa to enter the country by the hearing. Likewise, he was unable to pay for his witness’s travel.
The district court observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” In addition to good cause, Rule 43(a) requires appropriate safeguards, including: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. The Court found good cause existed for permitting the remote testimony. Petitioner represented to the Court that he could not afford the international travel and that he would be unable to obtain a visa to enter the United States by the hearing. The Court noted that
in Alcala v. Hernandez, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015) the Court allowed a petitioner to testify remotely after the court required petitioner to be properly identified and testify from a private room, free of outside influence and the petitioner’s counsel was also required to troubleshoot his videoconferencing connection with the courthouse staff prior to his testimony. The Court directed that Petitioner locate a conference room from which to testify by video-conference, free from outside influences. Likewise, his witnesses should be prepared to testify from a conference room where they are alone and free from outside influence. The Court directed that Petitioner and his witnesses residing in El Salvador shall be permitted to testify by video-conference. Where video-conferencing is not available, Petitioner and his witnesses residing in El Salvador shall be permitted to testify telephonically. Petitioner was to arrive one hour prior to the hearing so that his counsel could confirm with courtroom staff that the technology was working properly such that all members present in the courtroom could hear and understand his testimony. Petitioner was ordered to be prepared to provide sufficient identification at the hearing to properly identify himself and his witnesses. Petitioner was ordered to to testify from a closed room and no other person shall be permitted to communicate with Petitioner during the proceedings, either in person or otherwise, unless that communication is on the record in open court.