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.).

An MDL alone is not "good cause in compelling circumstances" under Rule 43, and the subpoena limitations of Rule 45 should not be sidestepped simply because the pending litigation is a high-stakes MDL. Rather, courts should recognize that "when the federal rule states a court may permit contemporaneous transmission 'for good cause in compelling circumstances' the rule really means 'for good cause in compelling circumstances.'" Niemeyer v. Ford Motor Co., No. 2:09-CV-2091, 2012 U.S. Dist. LEXIS 149987, at *5 (D. Nev. Oct. 18, 2012).

What Qualifies as 'Good Cause'?

The 1996 Advisory Committee Notes to Rule 43 explain "good cause in compelling circumstances" for remote transmission may include an inability "to attend trial for unexpected reasons, such as accident or illness," or "[a]n unforeseen need for the testimony of a remote witness that arises during trial." One court found that a party reneging on a promise to bring an executive live was a compelling, unexpected reason. See Aranda v. Caribbean Cruise Line, No. 12 C 4069, 2016 U.S. Dist. LEXIS 187389 (N.D. Ill. Aug. 30, 2016). Beyond "unforeseen need," however, the Advisory Committee urged caution in allowing remote transmission, including noting that video depositions were superior.

In the unusual context of bellwether trials, some courts have found "good cause in compelling circumstances" even where a party's inability to testify live in trial was expected. In such cases, courts have considered whether a witness played a key role in the case and whether the witness was a party representative. See, e.g., In re Xarelto (Rivaroxaban) Prods. Liab. Litig., No. 15-3708, 2017 U.S. Dist. LEXIS 81047 (E.D. La. May 26, 2017); In re Depuy Orthopaedics Pinnacle Hip Implant Prods. Liab. Litig., No. 3:11-MD-2244, 2016 U.S. Dist. LEXIS 195409 (N.D. Tex. Sept. 20, 2016); In re Actos (Pioglitazone) Prods. Liab. Litig., No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 2231, at *29 (W.D. La. Jan. 8, 2014).

Despite the "good cause in compelling circumstances" language being added to Rule 43 in 1996, in the last few years, some courts have instead used a five-factor test promulgated in 1988 to allow video transmission. The five-factor test from 1988 did not articulate a standard of good cause in compelling circumstances, instead noting "the novelty of this decision and the absence of authority explicitly permitting or prohibiting" video transmission (in an era before video depositions were common). See In re Wash. Pub. Power Supply Sys. Sec. Litig., No. 551, 1988 U.S. Dist. LEXIS 19630, at *1, *6 (W.D. Wash. Aug. 9, 1988). As interpreted by the court in Vioxx, these five factors include:

(1) the control exerted over the witness by the defendant;

(2) the complex, multi-party, multi-state nature of the litigation;

(3) the apparent tactical advantage, as opposed to any real inconvenience to the witness, that the defendant is seeking by not producing the witness voluntarily;

(4) the lack of any true prejudice to the defendant; and

(5) the flexibility needed to manage a complex multi-district litigation.

In re Vioxx Prods. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006) (citing Wash. Pub.). Although this test originated before the "good cause in compelling circumstances" standard existed, some courts have nevertheless applied it in determining whether the movant has demonstrated "good cause in compelling circumstances" under Rule 43. See id.; Depuy, 2016 U.S. Dist. LEXIS 195409, at *14-15. That is a mistake—the 1988 five-factor test does not take into account the prevalence of video depositions, and it unjustifiably focuses on whether a case is an MDL. See Actos, 2014 U.S. Dist. LEXIS 2231, at *42-48 (declining to adopt the five Washington Public factors, noting that decision was "issued in 1988, several years before the 1996 amendment to Rule 43 setting out the good cause/compelling circumstances standard").

What Doesn't Qualify as 'Good Cause'?

Following the Committee's direction that "possible justifications for remote transmission" other than an unexpected accident or illness "must be approached cautiously," some courts wisely have precluded contemporaneous transmission when a witness's absence was foreseeable—for example, when the party seeking relief under Rule 43 knew that a witness would be traveling during trial. See, e.g., Diamond Resorts Int'l v. Aaronson, No. 6:17-cv-1394, 2019 U.S. Dist. LEXIS 150094 (M.D. Fla. March 26, 2019); Niemeyer, 2012 U.S. Dist. LEXIS 149987.

Other district courts have not found good cause to allow video testimony from the opposing party's employee who was expectedly outside the court's subpoena power. See In re Urethane Antitrust Litig., No. 2:08-5169, 2016 U.S. Dist. LEXIS 21226 (D.N.J. Feb. 22, 2016); In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2014 U.S. Dist. LEXIS 180899, at *16 (D. Mass. Dec. 23, 2014); Williams v. Arctic Cat, No. 3:11-cv-445, 2014 U.S. Dist. LEXIS 33090, at *8-15 (N.D.N.Y. Mar. 13, 2014). Still other district courts prudently have been hesitant to order contemporaneous transmission where the movant merely argued that the witness was outside of the court's Rule 45 subpoena power and that real-time testimony is superior to deposition testimony. See, e.g., Union Pac. R.R. v. Beemac Trucking, No. 8:11CV8, 2013 U.S. Dist. LEXIS 180887 (D. Neb. Dec. 20, 2013).

Finally, and significantly, a few courts have specifically rejected arguments that MDLs inherently warrant video transmission. For instance, in the Nexium matter, the plaintiffs argued that "logistical complications inherent in MDL proceedings" satisfied Rule 43's requirements. Direct Purchaser & End-Payor Class Pls.' Mot. for Live Trial Test. via Contemporaneous Transmission at 4, In re Nexium (Esomeprazole) Antitrust Litig., No. 12-md-2409 (D. Mass. Jan. 21, 2014), ECF No. 831. The court rejected this contention, concluding that "the MDL practice is not somehow that I have nation-wide subpoena power," and quashed the plaintiffs' subpoena for live transmission from another federal courthouse. Final Pretrial Hr'g at 12:17-13:6, Nexium (Sept. 30, 2014), ECF No. 1030; Nexium, No. 14-mc-91298 (D. Mass. Oct. 9, 2014), ECF No. 11 (electronic order quashing subpoena). The plaintiffs in the Loestrin litigation again argued—without success—that "[t]he logistical complications inherent in MDL proceedings … generally satisfy Rule 43's 'good cause' requirement." Loestrin Mot. at 4 (denied by text order Nov. 25, 2019).

Federal trial courts should continue to reject attempts to use Rule 43 to circumvent the restraints of Rule 45 without a showing of actual "good cause in compelling circumstances," as opposed to mere inconvenience or the entirely known limitations of subpoena power.

Kate Dyson is a partner and Alyson Cox Yates is an associate at White & Case.