Judicial Proposal to Ease Remote Testimony Limits Draws Concerns

Judges and lawyers raised concerns about the federal judiciary’s proposal to ease the requirements for witnesses to testify remotely at trial, with one chief judge worrying the change could cause him to be “besieged” with those requests.

The Judicial Conference’s committee on rules of practice and procedure, known as the standing committee, debated the topic at a meeting Tuesday in Washington, part of the judiciary policymaking body’s process to revise rules governing the federal courts.

Witnesses in a trial may only testify remotely “for good cause in compelling circumstances and with appropriate safeguards,” under current rules on civil litigation. The committee is weighing a proposal to loosen those restrictions by removing the reference to “in compelling circumstances.”

Chief Judge Colm Connolly of the US District Court for the District of Delaware, a committee member, said he’s concerned that deleting those words “will create mischief” and that he’ll be “besieged by requests to have witnesses testify remotely.”

He also said he’s never heard lawyers at any conference complain that the rule’s current language prevented people from testifying remotely.

Removing the language could also “increase the prevalence of remote testimony by witnesses; pretty much anytime it’s convenient for a person a request would be made,” said Bart H. Williams, an attorney for Proskauer Rose who’s also on the panel.

Williams also raised concerns that witnesses testifying remotely could be communicating with other people not visible to the court.

“Witnesses should be in the courtroom if it is at all possible,” Williams said.

Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein, another attorney on the panel, said while she shares some of the concerns raised, she would like to see the proposal move forward to receive feedback from the public.

“We are in a world where remote testimony is being used, increasingly, sometimes of necessity, other times of convenience,” she said. “It is probably high time to have a rule that addresses it.”

The proposal to revise remote testimony requirements was one of several suggestions the committee considered at Tuesday’s meeting.

The standing committee, which considers proposals from the Judicial Conference’s various panels on civil, criminal, and other rule changes, also discussed possible changes to rules related to electronic filing by self-represented litigants and when parties may intervene in cases on appeal.

The committee also voted to send a separate proposal related to default judgments be published and opened for public comments.