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holding that conducting a bench trial by videoconference did not violate due process rights
Summary of this case from In re C.T.Opinion
Case No. 17-11130
2020-06-30
GOULD ELECTRONICS INC., Plaintiff, v. LIVINGSTON COUNTY ROAD COMMISSION, Defendant.
Frances A. Rosinski, Michigan Attorney Grievance Commission, Jeffery D. Gould, Kelly Elizabeth Kane, Stephen P. Ormond, Matthew W. Schlegel, Clark Hill, PLC, Detroit, MI, Michael J. Pattwell, Ronald A. King, Clark Hill, PLC, Lansing, MI, for Plaintiff. Frederick Lucas, Lucas Law, PC, Onsted, MI, Jeffrey D. Alber, Chelsea, MI, Paul E. Burns, Law Office of Paul E. Burns, Brighton, MI, for Defendant.
Frances A. Rosinski, Michigan Attorney Grievance Commission, Jeffery D. Gould, Kelly Elizabeth Kane, Stephen P. Ormond, Matthew W. Schlegel, Clark Hill, PLC, Detroit, MI, Michael J. Pattwell, Ronald A. King, Clark Hill, PLC, Lansing, MI, for Plaintiff.
Frederick Lucas, Lucas Law, PC, Onsted, MI, Jeffrey D. Alber, Chelsea, MI, Paul E. Burns, Law Office of Paul E. Burns, Brighton, MI, for Defendant.
OPINION & ORDER OVERRULING THE PARTIES' OBJECTIONS TO CONDUCTING A CIVIL BENCH TRIAL VIA VIDEOCONFERENCE (Dkts. 220, 221)
MARK A. GOLDSMITH, United States District Judge
This matter is before the Court on Plaintiff Gould Electronics Inc.'s ("Gould") and Defendant Livingston County Road Commission's ("LCRC") objections to conducting a civil bench trial via videoconference (Dkts. 220, 221). For the reasons that follow, the Court overrules these objections and directs the parties to be prepared to begin a bench trial via videoconference on July 13, 2020, at 8:30 a.m.
I. BACKGROUND
This is an environmental case in which the parties dispute whether and how the costs of remediation must be shared between the parties under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., and under Michigan's Natural Resources and Environmental Protection Act ("NREPA"), Mich. Comp. Laws §§ 324.101, et seq. The dispute goes back well over ten years and was the subject of an earlier lawsuit filed in 2009, which was dismissed without prejudice on the eve of trial in 2012, based on the parties' hopes that it could be resolved. See Order of Dismissal, Gould Electronics, Inc. v. Livingston Cty. Rd. Comm'n, E.D. Mich. Case No. 09-12633 (Dkt. 149). When the settlement efforts proved fruitless, the instant lawsuit was filed in April 2017.
The bench trial in this case was originally set for March 20, 2020, later adjourned to May 4, 2020. However, as the depth and breadth of the COVID-19 pandemic became painfully more apparent—leading to the complete closure of all the courthouses throughout our District and numerous restrictions on human interactions—the Court placed the bench trial in this matter on a trailing docket beginning on June 15, 2020. 4/14/20 Order (Dkt. 134). The Court directed the parties to be prepared to begin trial on that date and to remain prepared through July 20, 2020, with the Court to provide ten days' notice of the exact date trial would begin.
Anticipating that the courthouse might not be fully operational, or operational at all, for the foreseeable future, the Court convened a telephonic status conference on June 16, 2020, during which it solicited the parties' positions regarding options for proceeding with a bench trial, including videoconferencing. After giving the parties' views due consideration, the Court entered an order on June 23, 2020, indicating its inclination to proceed with a bench trial by videoconference and directing the parties to file either notice of their consent or memoranda setting forth their objections. 6/23/20 Order (Dkt. 219). Both parties filed objections.
II. DISCUSSION
The Court's authority to convene a bench trial by videoconference derives from Federal Rules of Civil Procedure 77(b) and 43(a). Rule 77(b) provides, in relevant part, that "[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom." Rule 77(b) does not define the terms "in open court," or "in a regular courtroom." The Court is unaware of any authority defining those terms in the context of Rule 77(b), and the parties have supplied none. But the tenor of Rule 77(b) —as evidenced by the phrase "so far as convenient"—is the allowance for flexibility in conducting trials in non-traditional ways when exigencies make traditional procedures impracticable. Without that flexibility, the federal judiciary would be paralyzed from utilizing an essential tool in dispensing justice to civil litigants.
This same flexibility is found in Rule 43(a). It provides that "[a]t trial, witnesses' testimony must be taken in open court," yet also states that "[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Like Rule 77(b), Rule 43(a) does not define the term "open court." But the drafting history shows that the purpose of requiring testimony to be taken in open court was a matter of functionality rather than physicality.
When the Federal Rules were adopted in 1937, Rule 43(a) —which originally did not contain the provision for "contemporaneous transmission"—was designed to curtail the practice in patent and trademark actions of using affidavits in place of live expert testimony. See Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1937 Adoption. Treatises also note that Rule 43(a) was intended "to combat the early practice in equity of providing juries with edited depositions of witnesses' testimony." 8 James Wm. Moore, et al., Moore's Federal Practice § 43.02 (3d ed. 1999); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2414 (3d ed. 1998). In addition to the concern that affidavits or edited testimony would be inaccurate, one-sided, and incapable of being tested by cross-examination, Rule 43's strong preference for live testimony would allow the factfinder to observe a witness's demeanor in order to determine the veracity of the testimony. See Moore's Federal Practice § 43.02. Thus, Rule 43(a)'s requirement that testimony take place in open court was designed to serve two functional purposes: (i) to ensure that the accuracy of witness statements may be tested by cross-examination, and (ii) to allow the trier of fact to observe the appearance and demeanor of the witnesses. In re Adair, 965 F.2d 777, 780 n.4 (9th Cir. 1992) (citing Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972) ).
In 1996, Rule 43(a) was amended to permit witness testimony to take place by contemporaneous transmission for good cause and in compelling circumstances. Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 Amendment. This amendment reflects an acknowledgement that advances in technology render it possible for remote testimony to nevertheless take place in open court. To be sure, the advisory committee notes indicate a strong preference for live testimony. Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 Amendment ("The importance of presenting live testimony in court cannot be forgotten."). But many recent cases acknowledge that "[t]he near-instantaneous transmission of video testimony through current technology permits ‘the jury [or, in a bench trial, the Court] to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration[.]’ " In re RFC & ResCap Liquidating Trust Action, 444 F.Supp. 3d 967, 970, (D. Minn. Mar. 13, 2020) (quoting In re Vioxx Prods. Litig., 439 F. Supp. 2d 640, 644 (E.D. La. 2006) ); see also Aoki v. Gilbert, No. 2:11-cv-02797, 2019 WL 1243719, at *1 (E.D. Cal. Mar. 18, 2019) ("Because a witness testifying by video is observed directly with little, if any delay in transmission ... courts have found that video testimony can sufficiently enable cross-examination and credibility determinations, as well as preserve the overall integrity of the proceedings." (internal marks omitted)). Accordingly, testimony by videoconference can satisfy the functional goals that Rule 43(a) was designed to achieve.
Further, as defined in Black's Law Dictionary, the term "open court" is sufficiently broad to embrace proceedings via videoconference. Specifically, Black's Law Dictionary provides the following definitions: (i) "[a] court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business," (ii) "a proceeding in which formal entries are made on the record," and (iii) "[a] court session that the public is free to attend." Black's Law Dictionary (11th ed. 2019). Under these definitions, the concept of "open court" requires that a judge preside over proceedings that take place on the record and that are open to the public. There is no requirement that the proceedings physically take place in a courtroom. These requirements are consistent with videoconference proceedings.
While there are no civil cases analyzing the meaning of the term "open court," it has been defined in the criminal context with an emphasis on the requirements that the proceedings be public and observe certain formalities. For example, in United States v. Alcantara, 396 F.3d 189, 205 (2d Cir. 2005), the Second Circuit considered whether the district court taking a criminal defendant's plea in a nonpublic robing room violated the requirement under Federal Rule of Criminal Procedure 11(b) that plea proceedings take place in open court. Relying in part on the definition in Black's Law Dictionary, the Second Circuit held that open court "refers to a courtroom to which the public has access." Id. Although the proceedings held in the robing room were recorded, and the transcript was made available to the public after the fact, this did not satisfy the "open court" requirement. Id. In so concluding, the court's analysis repeatedly emphasized that the proceedings must be public—however, it did not mandate that they must occur in a courtroom. Id. Additionally, in the context of a habeas petition, the Sixth Circuit analyzed a provision under the Interstate Agreement on Detainers authorizing continuances in criminal cases to be granted "for good cause shown in open court," with the criminal defendant and his counsel present. Stroble v. Anderson, 587 F.2d 830, 838-839 (6th Cir. 1978). The Sixth Circuit held that the trial court violated this provision when the clerk of court, without notice to the defendant, granted a continuance that was only later approved by a judge. Id. at 833, 839. In so holding, the court defined "open court" as a formal proceeding before a judge "on the bench"—however, the primary issue in Stroble was not whether the judge was located in a courtroom but rather whether a judge was present and presiding at all. Id.
In view of the text and history of Rules 77(b) and 43(a), as well as the considerations set forth in Black's Law Dictionary and caselaw, the Court is persuaded that conducting a bench trial by videoconference is consistent with the requirement that such proceedings take place in open court. As indicated above, videoconferencing technology enables counsel to test witnesses through cross-examination and courts to observe witnesses' demeanor. Additionally, a videoconference bench trial in the present action will observe the traditional formalities of an in-person trial, including that the undersigned will preside over the proceedings, that the parties and counsel will be present, that the proceedings will take place on the record, and that the proceedings will be open to the public. Consequently, conducting a bench trial via videoconference satisfies the requirement that such proceedings take place in open court.
Having determined that the Federal Rules enable courts to conduct bench trials via videoconference, the Court next examines the circumstances under which such measures are appropriate. As indicated above, Rule 43(a) permits testimony by contemporaneous transmission only for good cause in compelling circumstances. Determining whether good cause and compelling circumstances exist is a matter left to the court's discretion. RFC, 444 F.Supp.3d at 970, . This discretion is further supplemented by the court's " ‘wide latitude in determining the manner in which evidence is to be presented’ under the Federal Rules of Evidence." Id. (quoting Parkhurst v. Belt, 567 F.3d 995, 1002 (8th Cir. 2009) ). According to the advisory committee, "[t]he most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons ... but remains able to testify from a different place." Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 Amendment. Additionally, "[c]ontemporaneous 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." Id.
At least two courts have held that the COVID-19 pandemic and its impact on parties' and witnesses' ability to appear in person constitute compelling circumstances justifying conducting bench trial proceedings by videoconference under Rule 43(a). In RFC, the court held that "COVID-19's unexpected nature, rapid spread, and potential risk" established good cause under Rule 43(a) for conducting the final two days of a six-week bench trial by videoconference. 444 F.Supp.3d at 971, . Compelling circumstances justified the remote testimony of two out-of-state expert witnesses, who expressed safety concerns regarding the need to travel to the court. Id. The court further reasoned that conducting the remaining two days of trial by videoconference was preferable due to the likely complications of attempting to reschedule courtroom proceedings during the pandemic. Id. And while acknowledging the limitations inherent to remote proceedings, the court noted that advances in technology minimized these concerns. Id. at 969–71, .
Likewise, in Argonaut Ins. Co. v. Manetta Enters., Inc., No. 19-000482, 2020 WL 3104033, at *2-3 (E.D.N.Y. June 11, 2020), the court exercised its discretion under Rule 43(a), over one party's objections, to order that the entirety of a three-day bench trial regarding the narrow issue of damages be conducted via videoconference. Because the courthouse was closed with no immediate plans to reopen, the court determined that conducting the bench trial via videoconference was preferable to postponing the proceedings, particularly because a backlog of criminal proceedings would complicate rescheduling civil matters once the courthouse reopened. Id.
Two additional courts have held full bench trials via videoconference without formally addressing the implications of Rule 43(a). In Jones v. DeSantis, No. 4:19cv300, 462 F.Supp.3d 1196, (N.D. Fla. May 24, 2020), the court held an eight-day bench trial regarding the constitutionality of Florida laws restricting felons' right to vote. Given the nature of the rights at stake, the court determined that proceeding by way of videoconference was necessary to ensure that individuals impacted by the laws would have ample time to register to vote in advance of the November 2020 election. And in Food & Water Watch, Inc. v. Environmental Protection Agency, No. 17-02162 (N.D. Cal.), the court held an eight-day bench trial regarding the addition of fluoridation chemicals to drinking water. Accordingly, videoconference technology has been implemented successfully to conduct bench trials in cases involving varying degrees of complexity.
See https://www.nytimes.com/2020/04/27/us/florida-felons-voting-trial.html (last visited June 23, 2020).
Turning to the facts of this case, the Court, in its discretion, finds that trial cannot be conducted "in a regular courtroom" under Rule 77(b), and that conducting the entirety of the bench trial via videoconference is justified by compelling circumstances under Rule 43(a). Since March 25, 2020, the courthouse has remained closed to the public in response to the COVID-19 pandemic. The Court has postponed indefinitely courtroom proceedings, including trials, based on recommendations from public health organizations to limit the presence of counsel and court personnel in the courtroom. E.D. Mich. Administrative Order 20-AO-021. It remains uncertain when the courthouse will reopen to staff members, let alone resume public proceedings. In light of the grave and unprecedented public health concerns at issue, it is unlikely that an in-person bench trial could safely and realistically occur in a courtroom in the foreseeable future. And once public proceedings do resume, as observed in Argonaut, a backlog of criminal proceedings will take precedence over civil matters and will further complicate scheduling a bench trial in this case. See 2020 WL 3104033, at *2. Given the number of criminal trials that must be given priority—including a death penalty case and a human trafficking case that will each take several months to complete—the best prediction the Court could make at this time is that a civil bench trial might not be conducted for many months, and likely more than a year from now. Holding the trial via videoconference, by contrast, will ensure that resolution of this matter will be achieved in the immediate future. Consequently, proceeding with a bench trial by way of videoconference is preferable to the uncertainty of awaiting the reopening of the courthouse to the public.
The necessity for prompt resolution of this matter is further established by the protracted history of the action. As described above, Gould originally initiated an action in this Court against LCRC on July 6, 2009; on May 29, 2012, seven days before trial was scheduled to begin, the parties stipulated to dismiss the action without prejudice in an effort to settle the dispute. See Order of Dismissal. The stipulation authorized the parties to revive the case by filing a new action and provided that any new case would proceed to trial on an expedited basis, with discovery limited to new data or test results. Id. Gould revived the case by filing the present action on April 11, 2017. Pushing off trial until possibly a year from now or later would be a far cry from proceeding to trial on an expedited basis. Because this dispute has been pending for over a decade, further delays in resolving the matter cannot be abided.
Even if the Court eventually convened a bench trial in a courtroom on an earlier timetable than currently expected, there is a strong likelihood that the parties would be compelled to present a significant portion of trial testimony by videoconference, due to witnesses' unavailability, reluctance to travel, and reluctance to enter a public courthouse. During status conferences held on May 27, 2020, and June 16, 2020, both parties indicated the current unavailability of their principal expert witnesses to appear in person. Gould's expert witness resides in Toronto, Canada, and is prevented from entering the United States while the borders are closed to nonessential travel. Meanwhile, LCRC's expert witness resides out of state and suffers from a medical condition preventing her from traveling while the pandemic persists and perhaps beyond. Though the parties were uncertain regarding other witnesses' availability, it is probable that at least some will be unavailable for similar reasons.
The borders between the United States and Canada will remain closed to nonessential travel at least through July 21, 2020. See https://www.usatoday.com/story/travel/news/2020/06/16/when-us-canada-border-open-july-us-mexico-border/3199173001/ (last visited June 23, 2020). It is possible the closure will be extended beyond this timeframe. And even if the border reopens, there is no guarantee that it will remain so in the event of a "surge" or "second wave" of COVID-19 cases. See https://www.washingtonpost.com/nation/2020/06/22/coronavirus-live-updates-us/ (last visited June 23, 2020).
Gould objects that conducting the bench trial by videoconference would violate its due process right to a meaningful opportunity to confront and cross-examine witnesses. Gould Mem. at 5-6 (Dkt. 220). In support of its argument, Gould cites cases addressing what process is due before the government may deprive an individual of a constitutionally protected property interest. See Goldberg v. Kelly, 397 U.S. 254, 268-269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (concerning termination of welfare benefits); Greene v. McElroy, 360 U.S. 474, 497-498, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (concerning termination of employment). The Supreme Court held in both cases that a meaningful opportunity to be heard required that these individuals be afforded an opportunity to appear personally, to present evidence, and to confront or cross-examine adverse witnesses. Goldberg, 397 U.S. at 268-269, 90 S.Ct. 1011 ; Greene, 360 U.S. at 497-498, 79 S.Ct. 1400. But these cases did not address the mode by which confrontation or cross-examination must take place.
Any argument that principles of due process require that testimony and cross-examination take place in-person is undercut by the Federal Rules of Civil Procedure. As discussed above, the Federal Rules expressly authorize courts to permit witnesses to testify via contemporaneous transmission for good cause and in compelling circumstances. Fed. R. Civ. P. 43(a). Moreover, if a court finds that a witness is unavailable, the Federal Rules permit the use of deposition testimony instead of requiring that the witness personally appear. Fed. R. Civ. P. 32(a)(4). It is unreasonable to suggest that these accepted methods of presenting evidence somehow violate due process.
Moreover, the Court is unpersuaded that the parties' ability to cross-examine witnesses, and the Court's ability to effectively evaluate witnesses' credibility, will be impaired by conducting the proceedings via videoconference. As indicated above, the instantaneous transmission of video testimony permits the Court and counsel to view a witness live, "along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration[.]" RFC, 444 F.Supp.3d at 970, (internal marks omitted). And although "[t]he very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling," Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 Amendment, these elements will not be sacrificed by conducting the proceedings by videoconference. The formalities of trial will be observed, and the Court, as well as counsel, will be visible to witnesses. The fact that witnesses will be testifying remotely does not render them unaccountable for the veracity of their statements, as they will be under oath. Not only is opposing counsel entitled to cross-examine witnesses, but the Court may also examine witnesses regarding their testimony under Federal Rule of Evidence 614(b). Further, the proceedings will be accessible to public viewing. Thus, the parties will not be deprived of their right to effectively confront and cross-examine witnesses in a public setting.
Gould next objects that conducting the proceedings by videoconference would impair its ability to convey complex, technical subject matter, including experts' testimony, in an effective and understandable manner. Gould Mem. at 2-3, 6. Again, the Court is not persuaded by this argument. The events giving rise to the present dispute do not appear to require resolution of numerous disputed factual issues. Rather, the matter is complex because of the scientific nature of the experts' testimony. The case is more likely to turn on the reasonableness and plausibility of the experts' respective opinions than on numerous factual issues requiring a large number of fact witnesses. Although this testimony will be of a technical nature, the Court, as the finder of fact, is confident that it will adequately understand the experts' testimony when presented via videoconference. And as noted in RFC, the Court can clarify and resolve any issues by examining witnesses called by the parties. See RFC, 444 F.Supp.3d at 972–73, (citing Fed. R. Evid. 614(b) ).
Gould's final objection concerns the possibility that the proceedings may be plagued by technical "glitches." Gould Mem. at 2, 4, 6. But the Court intends to take measures to minimize such difficulties by arranging for the parties to participate in preparatory technical sessions. During trial, the Court's IT department will be available to assist with any technical difficulties that may arise. The Court notes that conducting an in-person bench trial would not eliminate the risk of encountering technical glitches, as litigants from time to time encounter difficulties using technology in the courtroom (e.g., connecting laptops or displaying exhibits). Further, the visual and audio quality of the Court's videoconferencing software that would be used for a remote trial is, in many ways, superior to the quality of technology used in a courtroom.
Gould cites an article describing numerous technical glitches that disrupted the proceedings in Jones. See Gould Mem. at 4. However, the article speaks only to the first day of trial and does not address whether these difficulties were resolved as the proceedings progressed. Encountering such difficulties at the beginning of trial is par for the course, even during courtroom proceedings. Additionally, the trial in Jones began on April 27, 2020, only a few weeks after the COVID-19 pandemic began to impact operations within the United States. Since that time, courts have become well versed with using videoconferencing technologies. The Court finds that the possibility of an occasional technical glitch is not a sufficient reason to further delay the trial in this matter.
See https://www.miaminewtimes.com/news/florida-felon-voting-rights-case-has-glitches-in-video-trial-11629878 (last visited June 26, 2020).
LCRC raises a single objection to conducting the bench trial by videoconference. LCRC Mem. at 2-3 (Dkt. 221). As argued in a recent motion seeking leave to file a second motion for summary judgment, LCRC contends that a state agency took final administrative action when it issued a letter stating that it had no further regulatory interest in LCRC's property. Id. According to LCRC, the Court is thereby deprived of jurisdiction to conduct a de novo trial on this matter under Sackett v. Environmental Protection Agency, 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012). Id. But LCRC does not cite any authority foreclosing a party from bringing an action under CERCLA or NREPA on the basis of an agency's discretionary decision not to pursue the matter. Because LCRC's argument is not fully developed, the Court declines to address the merits of this issue at this stage. See Rivet v. State Farm Mut. Auto. Ins. Co., 316 F. App'x 440, 449 (6th Cir. 2009) (declining to address arguments that were unsupported or undeveloped).
Finally, the parties raise a variety of concerns regarding the logistics of trial, including but not limited to coordination with witnesses, the presentation of certain exhibits, the videoconferencing software being used, and the technological capabilities of the software. See Gould Mem. at 3, 7-9; LCRC Mem. at 3-4. These issues were discussed at the June 29, 2020 status conference and, to the extent not resolved at that conference, will be addressed by the Court and the parties through additional conferences.
III. CONCLUSION
For the reasons stated above, the Court overrules the parties' objections (Dkts. 220, 221) and directs the parties to be prepared to begin a bench trial via videoconference on July 13, 2020, at 8:30 a.m.
SO ORDERED.