Palau is an island archipelago in the Pacific Ocean. The local economy depends on tourism, mostly visitors interested in snorkeling and diving along the beautiful barrier reefs.
Apart from tourism, Palau’s economy is dominated by the fish trade. Palau fishermen export delicious and increasingly rare bigeye and yellowfin tuna destined for sushi restaurants, along with giant clams and trochus. Travelers from the United States can reach Palau with United Airlines after a brief stopover in Guam — about a 62-hour drive from West Coast airports.
Significantly, Palau is 5,400 miles from the federal courthouse in Salt Lake City, Utah, where plaintiffs in a civil rights lawsuit insist Officer Jared Carlson — who decided to retire to Palau shortly after the lawsuit was filed — must be tried. Person.
The officer’s sudden departure sparked concern
When Officer Carlson’s attorneys objected, insisting that remote filing was the most reasonable means of obtaining the officer’s account of the events, plaintiff’s attorneys offered the following reasons why, in this case, filing in person (if required in Palau) was required :
- Officer Carlson is a named defendant.
- Office Carlson left the country without notice despite being aware of the pending litigation.
- Officer Carlson is “the key witness” in the case.
- In the case of a remote testimony, significant technical or situational difficulties would arise.
- There are fair and reasonable alternatives to making a personal deposit.
The law applicable to this discovery dispute is simple. Federal Rule of Civil Process 30(b)(4) provides that “[t]The parties may specify, or the court may order upon application, that testimony be given by telephone or other means remotely.” In the case at hand, federal courts have interpreted the rule to require “good cause” for remote filing. However, given the legal community’s response to the pandemic and the proliferation of remote testimony in modern legal practice, the “good cause” barrier is all but non-existent in many courthouses.
Officer Carlson, according to the complaint, was one of two officers involved in the alleged unlawful arrest that led to the lawsuit. The plaintiffs were obviously upset that he had decided to move to Palau after filing their lawsuit, apparently without notifying anyone. However, neither the magistrate nor the district judge saw this as a reason to compel a personal testimony.
Body cam video challenges
The “significant technical and situational difficulties” alleged by the plaintiffs arose from the fact that a key piece of evidence was video footage captured by body cameras worn by Office Carlson and another officer during the plaintiff’s arrest. Plaintiffs claimed it was “virtually impossible” to use this video to effectively question Officer Carlson during a remote interview.
“Without a competent contact person on site in Palau, there is a high probability of technical problems,” argued the plaintiff. “It will affect the quality and usefulness of the deposit.”
Again, the district court was unconvinced that the burden was too great — or too extraordinary — to require personal deposition:
In addition, district courts have consistently upheld Rule 30 orders for remote testimony despite similar problems. Therefore, while making a remote deposit may pose some problems, it is not necessary for a court to order that the deposit be made in person. (quotes omitted)
How badly did the plaintiffs want to remove Officer Carlson personally? So much so that they were willing to pay to fly him back to Utah or to an intermediate destination like Hawaii.
The district court was unimpressed by the generosity of the plaintiffs. Even if Officer Carlson’s financial costs are borne by the plaintiffs, there will still be significant time and inconvenience and other burdens for all parties associated with trips to Utah or Hawaii, the court noted. “The remote custody order is therefore reasonable given the distance, travel time and potential cost,” the court wrote.
There are a few takeaways to be pulled from this admittedly extraordinary case. The first is that permission to take an affidavit is generously granted today. The courts decide whether to allow remote custody after careful consideration of the reasons put forward by the advocate of remote custody and the disadvantages and hardships alleged by the party resisting the hearing. Only the most important and case-specific objections to remote custody prove successful.
The second lesson is that, if litigants wish to prevail in discovery disputes, they must prevail before the Magistrate Judge, who oversees the discovery process. Pursuant to 28 USC 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), the magistrate’s orders are reviewed against a clearly erroneous or unlawful standard. Even if the District Judge had ruled otherwise, the Magistrate Judge’s views will rule the day except in the most egregious cases of error.
When the magistrate orders remote testimony instead of a 62-hour trip to a distant tropical island, it becomes difficult to overturn the order.
The case is Blackmore v. Carlson, No. 4:21-cv-00026-TS-PK (D. Utah, August 22, 2022).