On January 11, 2019, the Fifth Circuit issued a decision (available here) in Swearingen v. Gillar Home Heath Care. The Fifth Circuit found that the district court abused its discretion when it permitted a key witness to testify by deposition—rather than in person—at trial.
In the case, the defendant obtained deposition testimony from one of its former employees that bolstered the defendant’s claim that it did not improperly terminate the plaintiff. The defendant then filed a motion seeking permission to use the former employee’s testimony at trial by reading the deposition transcript into evidence. The district court granted the defendant’s motion, while noting that the plaintiff could subpoena the former witness to testify live at trial if the plaintiff wanted to. The plaintiff appealed.
On appeal, the defendant argued that the deposition testimony was admissible, because the witness lived 95.5 miles from the courthouse, which was “close enough to the Rule’s requirement of 100 miles” (i.e., Rule 32(a)(4)(B) allows a party to use the deposition of a witness where “the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition”). The defendant also argued that the witness would “miss work and travel a lengthy distance” which would pose an “undue burden” on the witness. Finally, the defendant argued that the witness (as one of the defendant’s former employees) was not within the defendant’s “control.”
The Fifth Circuit noted that (i) it is all but inevitable that witnesses who are employed will miss work, (ii) a witness not within the control of a party is not unique, and (iii) the witness being “almost 100 miles from the trial” is not good enough to invoke Rule 32(a)(4)(B). The Rules prohibit using deposition testimony at trial unless “live testimony from the deponent is impossible or highly impracticable” and “the inconvenience of traveling any distance less than 100 miles, by itself, cannot render live testimony ‘extremely difficult or virtually impossible’ to obtain.”
The Fifth Circuit further noted that it was immaterial that the plaintiff could have subpoenaed the witness to testify live at trial—it was not the plaintiff’s burden to do so and “[a] party should not be required ‘to subpoena a hostile witness.’”
Finally, because the witness provided key testimony (i.e., the only testimony contradicting the plaintiff’s testimony on the central factual issue in the case), the admission of the deposition was not harmless. “Only through live cross-examination can the jury fully appreciate the strength or weakness of the witness’[s] testimony, by closely observing the witness’[s] demeanor, expressions, and intonations.” (citations and quotations omitted). The Fifth Circuit thus reversed and remanded for a new trial.