United States District Court, W.D. Virginia, Abingdon Division
P. Jones United States District Judge Caitlin Marie Kasmar,
Katherine Katz, John B. Williams III, and Timothy J. Coley,
BuckleySandler LLP, Washington, D.C., and Elliot M. Mincberg,
Washington Lawyers' Committee for Civil Rights and Urban
Affairs, Washington, D.C., for Plaintiff;
Maughan, Office of the Attorney General, Richmond, Virginia,
and Jeff W. Rosen, Pender & Coward, PC, Virginia Beach,
Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
plaintiff has moved for leave to allow the use of his
videotaped deposition at trial in place of his personal
attendance on the ground that he is unavailable within the
meaning of Federal Rule of Civil Procedure 32(a)(4). I will
deny that request, but will permit the plaintiff to testify
at trial through a live video appearance.
plaintiff, a former inmate with the Virginia Department of
Corrections (“VDOC”), is alleged to suffer from
Autism Spectrum Disorder and intellectual disability. He
asserts in this action that he was denied proper medical
treatment for his mental conditions and subjected to other
abusive conduct, lack of due process, and retaliation during
his incarceration for eight months at the Marion Correctional
Treatment Center (“MCTC”), a VDOC facility. In
2015 he was conditionally pardoned by the Governor of
Virginia. He currently resides in a private treatment
facility located in Orlando, Florida, some 600 miles away
from this courthouse.
deposition in this case was taken by the defendants on
September 25, 2017, in Orlando. During that deposition,
Latson was unable to recall many details of his alleged
mistreatment at MCTC. In the present motion, Latson's
attorneys assert that since Latson is more than 100 miles
from the place of trial, Fed.R.Civ.P. 32(a)(4)(B), or
alternatively, is unavailable to testify at trial due to his
“illness [or] infirmity, ” Fed.R.Civ.P.
32(a)(4)(C), his deposition may be used at trial in lieu of
his actual appearance. However, they do not want to use the
deposition taken in 2017. Instead, they propose that at some
time close to trial, they take a second videotaped deposition
of Latson for use at the trial.
plaintiff's motion is supported by declaration of a
licensed clinical psychologist who has evaluated Latson and
opines that it would produce “negative
consequences” to Latson's “mental
well-being” to travel to Virginia and attend the trial.
Mem. Supp. Pl.'s Mot. Ex. A, Hamlett Decl. 2, ECF No.
157-1. In addition, the program coordinator at the treatment
facility in Florida has submitted a declaration stating that
there would be “negative impacts” on Latson to be
away from his treatment regime “for any extended period
of time.” Id., Ex. B, Hamilton Decl. 2, ECF
defendants oppose the motion on the ground that live
testimony should be preferred, in order to allow the jury a
better opportunity to judge Latson's credibility, which
they contend is an important issue in the case. As an
alternative, the defendants suggest a live video appearance
by the plaintiff from Orlando. The plaintiff's attorneys,
in opposition to that alternative, explain that Latson is
prone to pause and to go “on tangents” and talk
about things not asked of him. The plaintiff's attorneys
contemplate “condensing” the proposed deposition
in order to remove any periods of irrelevancy, purportedly to
preserve the time and attention of the jury.
testimony by witnesses in open court is preferred,
see Fed. R. Civil P. 43(a), there is no doubt that
the rules permit the use of deposition testimony at trial of
a witness - even a party - in lieu of personal appearance, as
long as the conditions set forth in Rule 32(a)(4), or any of
them, have been met. See Richmond v. Brooks, 227
F.2d 490, 492-93 (2d Cir. 1955). On the other hand, the court
has the discretion to exclude such deposition testimony even
if permitted under the rules, under appropriate
circumstances. See Skins & Leather Co. v. Twin City
Leather Co., 246 B.R. 743, 748 (N.D.N.Y. 2000).
the defendants do not contest that the plaintiff is
unavailable within the meaning of Rule 32(a)(4) because he
resides more than 100 miles from the place of trial and is
infirm,  I agree with them that videotaped
testimony of the plaintiff for trial would not be appropriate
in this case. Even if the deposition were taken close to the
date of trial, it would still restrict the ability of defense
counsel to cross examine the plaintiff about matters that
arise during the trial, including the testimony of other
witnesses. Moreover, the process of editing the videotape to
remove portions that the plaintiff's attorneys do not
want the jury to see is bound to produce disputes requiring
extensive time for the lawyers and the court to resolve.
however, permit the plaintiff to testify by contemporaneous
video transmission, finding good cause and compelling
circumstances for that process. See Fed. R. Civ. P.
43(a). It is important that the jurors be able to observe him
uncensored and in real time, in order to make their necessary
credibility determinations. Moreover, it would be unfair to
remove the possibility of impeaching cross examination about
matters that might first present themselves at trial.
Contemporaneous remote video testimony would balance the risk
of harm to the plaintiff from traveling to trial with the
preference for live testimony.
for the plaintiff objects to live video testimony because
they believe it would be necessary to have an attorney
present with the plaintiff during his testimony, and thus by
necessity that lawyer would be absent from the trial, at
least for the time required to return from Florida after the
plaintiff's testimony. While I agree that this is not a
perfect solution, I do note that no less than 11 lawyers from
a national law firm have entered an appearance for the
plaintiff and thus the plaintiff will not be lacking legal
fire power at any stage of the case.
it is ORDERED that Plaintiff Reginald
Cornelius Latson's Motion to Use Deposition Testimony of
Unavailable Witness at Trial, ...