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Monday, September 17, 2018

Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) [Federal & State Judicial Remedies] [Remote testimony]

          In Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) the district court granted the parties’ joint motion requesting that the Court authorize remote testimony for the Petitioner and for certain witnesses who are likely to be called to testify by the parties. It observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). As the Fourth Circuit has noted, remote testimony does not “preclude the respondent from confronting and conducting relevant cross-examination of the witnesses,” so it does not offend due process considerations. United States v. Baker, 45 F.3d 837, 843-44 (4th Cir. 1995). Allowing remote testimony in Hague Convention actions, as long as subject to certain safeguards, is not without precedent. In Alcala v. Hernandez, No. 4:14-CV-04176-RBH, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015), the court required petitioner to be properly identified and testify from a private room, free of outside influence. The petitioner’s counsel was also required to troubleshoot his video-conferencing connection with the courthouse staff prior to his testimony. The court found those safeguards were appropriate here to ensure reliable testimony. As indicated in the Motion, the parties agreed to ensure that their witnesses utilize an appropriate room from which to testify by video-conference, free from outside interference. The parties also agreed to require the witnesses to present official identification prior to testifying, and have explained their willingness to work with the Court’s IT staff to troubleshoot the video-conferencing system prior to trial. The court directed that where video-conferencing is not available or if technical difficulties arise, those witnesses may also testify telephonically.

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