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Flame S.A. v. Industrial Carriers, Inc.

United States District Court, E.D. Virginia, Norfolk Division

August 21, 2014

FLAME S.A., Plaintiff,


ROBERT G. DOUMAR, Senior District Judge.

This matter comes before the Court on Freight Bulk Pte Ltd's ("FBP") Motion to Permit Viktor Baranskiy[1] to testify from Odessa, Ukraine (the "Motion"). ECF No. 361. The Court DENIED the Motion at the Final Pretrial Conference and memorializes its reasons herein.


This litigation has gone on for some time. All parties are aware of the history of this case. Thus the Court focuses only on the relevant procedural history of the instant motion.

FBP requests that Mr. Baranskiy be permitted to testify via video transmission from Odessa, Ukraine. Flame and Glory Wealth object to this arrangement and moved for sanctions against FBP, [2] arguing that Mr. Baranskiy is under no travel restrictions and therefore able to attend trial in person. FBP contends in response that Mr. Baranskiy, a junior lieutenant in the Ukrainian military, is subject to a draft notice which obligates him to report for duty within twelve (12) hours of receiving notice of his conscription. Under FBP's analysis, his draft notice, in turn, prevents Mr. Baranskiy from leaving Ukraine and necessitates his testimony be given from Odessa.


Federal Rule of Civil Procedure 43(a) provides the relevant standard. It states: "For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Fed.R.Civ.P. 43(a). The 1996 Amendments explain this standard more thoroughly. They provide:

Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.
The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that other-and perhaps more important-witnesses might not be available at a later time.
Other possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses. Deposition procedures ensure the opportunity of all parties to be represented while the witness is testifying. An unforeseen need for the testimony of a remote witness that arises during trial, however, may establish good cause and compelling circumstances. Justification is particularly likely if the need arises from the interjection of new issues during trial or from the unexpected inability to present testimony as planned from a different witness.
A party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances. Notice of a desire to transmit testimony from a different location should be given as soon as the reasons are known, to enable other parties to arrange a deposition, or to secure an advance ruling on transmission so as to know whether to prepare to be present with the witness while testifying.

Fed.R.Civ.P. 43. Permitting or rejecting such testimony is within the Court's discretion. See United States v. Kivanc , 714 F.3d 782, 791 (4th Cir. 2014) (applying an abuse of discretion standard ...

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