In 1996, Federal Rule of Civil Procedure 43(a) was amended to allow contemporaneous transmission of testimony from a remote location upon a showing of “good cause in compelling circumstances.” The Advisory Committee noted in making this amendment, however, that “[t]he importance of presenting live testimony in court cannot be forgotten” and that transmission “cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.” In other words, the default should be live testimony in open court.
But plaintiffs in large class actions—such as the plaintiffs in the recent class action In re Loestrin 24 FE Antitrust Litigation—have attempted to subpoena testimony via live video transmission from witnesses outside the trial court’s Rule 45 subpoena power. They argue that supposed “logistical complications inherent in MDL proceedings” independently satisfy the “good cause” requirement of Rule 43. Pls.’ Mot. for Contemporaneous Video Transmission at 4, In re Loestrin 24 FE Antitrust Litig., No. 1:13-md-02472 (D.R.I. Nov. 13, 2019), ECF No. 1316 (Loestrin Mot.).
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