Hammann v. 1-800 Ideas Inc
Filing
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ORDER Denying 219 Plaintiff's Motion for Contemporaneous Transmission of Testimony. Signed by Magistrate Judge George Foley, Jr on 2/8/13. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JERALD ALAN HAMMANN,
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Plaintiff,
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vs.
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800 IDEAS, INC.,
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Defendant.
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__________________________________________)
Case No. 2:08-cv-00886-LDG-GWF
ORDER
Motion for Contemporaneous
Transmission of Testimony (#219)
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This matter comes before the Court on Plaintiff’s Motion for Contemporaneous
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Transmission of Testimony (#219), filed on December 10, 2012. Defendant filed a timely
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Opposition on December 27, 2012. Trial in this matter is currently set for July 8, 2013. See Doc.
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#226.
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Plaintiff seeks leave to permit his damages expert, Mark Meitzen (“Meitzen”), to testify at
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trial by transmission from a remote location. Federal Rule of Civil Procedure 43(a) provides that
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“[f]or good cause in compelling circumstances and with appropriate safeguards, the court may
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permit testimony in open court by contemporaneous transmission from a different location.” The
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advisory committee notes state “justifications for remote transmission must be approached
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cautiously.” Fed. R. Civ. P. 43(a) advisory committee's note (1996 amendment). “A party who
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could reasonably foresee the circumstances offered to justify transmission of testimony will have
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special difficulty in showing good cause and the compelling nature of the circumstances.” Id.; see
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e.g., Palmer v. Valdez, 560 F.3d 965, 968–69 n. 4 (9th Cir.2009); Rodriguez v. SGLC, Inc., No.
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2:08–cv–01971, 2012 WL 3704922, at *2–3 (E.D.Cal. Aug.24, 2012) (denying a Rule 43(a) motion
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because “the circumstances confronting plaintiffs can hardly be construed as unforeseen”).
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...
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Plaintiff has not adequately demonstrated good cause and compelling reasons for
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contemporaneous transmission of Meitzer’s testimony. This matter has been on track for trial for
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two years. Plaintiff argues that the multiple trial continuances have created uncertainty regarding
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whether Plaintiff can secure Meitzer’s appearance. The current trial date is eight months away,
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however, and affords Plaintiff ample opportunity to arrange for Meitzer’s testimony. Plaintiff has
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not offered any reasons why Meitzer will not be able to attend the trial. Furthermore, this Order
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does not preclude Plaintiff from attempting to introduce Metizer’s prior deposition testimony at
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trial. The Court does not now reach the admissibility of the deposition, however, because such
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determination requires consideration of factors not presently before the Court. The deposition’s
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admissibility can be properly addressed, if necessary, in a motion in limine before the trial date.
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Accordingly,
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IT IS HEREBY ORDERED that Plaintiff’s Pretrial Motion for Contemporaneous
Transmission of Testimony (#219) is denied.
DATED this 8th day of February, 2013.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
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