Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

John Roehrs, M.D. and Jean Roehrs, his) ) wife, ) ) Plaintiffs, ) ) vs. ) ) Minnesota Life Insurance Company, et al.,) ) ) Defendants. ) )

No. CV-03-1373-PHX-LOA ORDER

This matter arises on Plaintiffs' Motion To Allow Testimony Of Witnesses 17 Electronically. (docket # 133) 18 apparently withdrawn their request that Dr. Guillermo Huerta testify at all in the ERISA trial 19 and that Defendants have no objection to Carol Anderson testifying telephonically provided 20 she has in her immediate possession a complete copy of her deposition and copies of all 21 exhibits offered by both sides. 22 Federal Rule of Civil Procedure 43(a) provides that "for good cause shown in 23 compelling circumstances and upon appropriate safeguards, [a court may] permit 24 presentation of testimony in open court by contemporaneous transmission from another 25 location." Rule 43(a), FED.R.CIV.P.; Dagen v. CFC Group Holdings Ltd., 2003 WL 26 22533425 (E.D.N.Y. 2003). The advisory committee's note cautions that such permission 27 should not be granted lightly. Id. 28
Case 2:03-cv-01373-LOA Document 137 Filed 12/06/2005 Page 1 of 2

Defendants' Response indicates that Plaintiffs have

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While the Court recognizes the importance of presenting live testimony to test credibility, it is appropriate in this case to permit this witness to appear and testify telephonically. The witness lives in or near Omaha, Nebraska, is not a party to this lawsuit, has previously been deposed and cross examined by counsel and the trial tomorrow is to the Court, who finds it less compelling to have a witness physically present to judge a witness' credibility than a jury might. Considering Defendants have no objection to this witness testifying telephonically and appropriate safeguards can be implemented to ensure fairness to all parties for a telephonic appearance, the Court will allow this witness to appear and testify telephonically in the ERISA trial. Good cause appearing, IT IS ORDERED that Plaintiffs' Motion To Allow Testimony Of Witnesses Electronically, (dkt # 133), is GRANTED. Witness Carol Anderson may conditionally testify telephonically in the trial beginning tomorrow provided the following conditions are met: 1. Plaintiffs' counsel shall physically provide to the witness a complete copy of the witness' deposition, copies of all her deposition exhibits, and legible copies of all possible exhibits identified by both parties in the Joint Pretrial Order (dkt #136), filed on December 5, 2005, 2. The witness shall have an operable fax machine readily available to her when she testifies so that unexpected documents may be faxed to her for contemporaneous questioning about such documents, and 3. Plaintiffs' counsel shall have the witness' telephone and fax number readily available for the Court to call when she is to testify in this matter. The Court's staff shall immediately fax a copy of this Order to all counsel of

DATED this 6th day of December, 2005.

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