Remote Testimony

Mark Gidley, a partner in the Washington, D.C., office of White & Case, represented Stolt-Nielsen, along with partners Christopher Curran and Peter Carney. Working with Eugene Stein, then the firm’s chief knowledge and technology officer, the team decided their best option was to create a live, two-way video feed from Wingfield’s location in Auckland to the hearing in Philadelphia. Creating this live international video feed would present both legal and logistical challenges.

UnLaWfUL ViDeo feeD?
The DOJ was represented by a team that included Philadelphia antitrust division field office chief Robert Connolly and antitrust division attorney Antonia Hill, who argued that taking Wingfield’s testimony by live video from New Zealand on such short notice presented legal problems. Hill referred questions about the trial to Gina Talamona, a deputy director at the DOJ’s Office of Public Affairs in Washington, D.C., who chose not to comment on the litigation.

In a memorandum to the court, the DOJ stated that the direct transmission of the testimony of a New Zealand national to a U.S. courtroom would require the permission of the New Zealand government. Because the DOJ expected that obtaining permission — and getting clearance for one of its lawyers to travel into New Zealand — could take weeks, it urged the court to delay Wingfield’s testimony.

To support its position that Wingfield’s timely video testimony was critical to its clients’ case, the White & Case team obtained a legal opinion from a senior legal advisor in New Zealand’s Ministry of Foreign Affairs and Trade, opining that, while New Zealand law provided that the U.S. government could request the assistance of the New Zealand government in securing a witness’ testimony, such a request to the New Zealand government was not required. On May 25, 2007, U.S. district judge Bruce Kauffman permitted the live video feed, and the parties proceeded to trial.

LiVe froM neW ZeaLanD
While presentation of videotaped depositions at trial has become commonplace, a live video feed from an overseas location presents logistical challenges. For starters, there was the 16-hour time difference. Not only would it be a time difference, it would be a date difference. If they started Wingfield’s testimony on a Tuesday in Philadelphia, it would be Wednesday for Wingfield. It also meant that either Auckland would have to be in session very early or Philadelphia would have to stay in session very late.

Given the international nature of the firm’s practice, White & Case professionals are told to carry a valid passport at all times, explained Gidley. On May 29, summer associate Frank Hogue found out why. Thinking he was going to Philadelphia for the summer, Hogue, a second-year law student at the University of Mississippi, was sent to New Zealand.

For nine days, Hogue worked around the clock — literally — with White & Case paralegal Matthew Cormack and Eugene Stein’s tech team in the U.S. The firm retained Affinity VideoNet (www.affinityvnet.com), which has offices in both Philadelphia and Auckland, for videoconferencing services, along with the Auckland office of asnet Technologies Ltd. (www.polycomnz.co.nz).

“The court’s installed video technology apparently had not been used for anything like this before,” said Stein, who recently left the firm to become chief administrative and operating officer at Wachtell, Lipton, Rosen & Katz.

Before the actual testimony, the White & Case tech team worked with the court’s technology staff to do several live rehearsals from Philadelphia with the team in New Zealand.

With an ISDN network, the firm used a Polycom Group Video Conference VS512 in Philadelphia and a Polycom Group Video Conference VSX8000 in Auckland, providing a live video feed from the offices of White & Case’s local counsel, the New Zealand firm, Bell Gully, to the courtroom in Philadelphia.

“We had the opportunity to go with a newer, more advanced system, but, in tests, the older technology was actually more reliable,” recalled Gidley.

One concern expressed by the DOJ team was the inability to have its lawyers in Auckland present handwritten exhibits to Wingfield during his testimony. Antitrust division attorney Timothy Bridgeford was in Auckland for the testimony, and to alleviate the government’s concerns, White & Case’s Hogue filled binders with hard copies of the approximately 4,000 trial exhibits that were available in digital format in Philadelphia.

The Feed and The Future
Wingfield’s live video testimony was taken on June 5-6, 2007, and was a technological success. Throughout the two days of testimony, the video feed was lost for only 45 seconds, and the audio feed was never lost.

The testimony and the trial were also a legal success for Stolt-Nielsen. Judge Kauffman dismissed the indictment on Nov. 30, 2007, ruling that the company and the executives had fulfilled their obligations under the agreement with the DOJ.

Resources

• The Court’s Memorandum and Order
• The Court’s Findings of Fact and Conclusions of Law.
• The DOJ’s Memorandum to the court noting its concerns about doing the video deposition.
• Stolt-Nielsen’s Reply to the DOJ Memorandum rebutting the DOJ arguments about the use of the video.

Courtroom Technology
United States v. Stolt-Nielsen, S.A.