IN THE UNITED ST A TES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION - CINCINNATI 

ANN MARIE MYERS, Case No. 1:18-cv-144 

Plaintiff, Judge Matthew W. McFarland 

V. 

WELLS FARGO, N.A., et al. 

Defendants. 

ORDER DENYING PLAINTIFF'S MOTION TO ALLOW TRIAL TESTIMONY OF 

WITNESSES VIA LIVE VIDEO-CONFERENCE (DOC. 102) 

This case is before the Court on Plaintiff's Motion to Allow Trial Testimony of 

Certain Witnesses Via Live Video-Conference (Doc. 102) filed by Plaintiff Ann Marie 

Myers ("Ms. Myers") pursuant to Federal Rule of Civil Procedure 43(a). 

It is well-settled that the presumption for a trial is that it occur in person, in open 

court. Federal Rule of Civil Procedure 77(b) provides that "[e]very trial on the merits 

must be conducted in open court .... " This Court may deviate from the requirement of 

a live trial if, in its discretion, there exists "good cause in compelling circumstances with 

appropriate safeguards," and then testimony may be taken from a different location via 

"contemporaneous transmission," such as video-conferencing. See Fed. R. Civ. P. 43(a). 

Nonetheless, as the 1996 Advisory Committee Note explains, "[t]he importance of 

presenting live testimony in court cannot be forgotten. The very ceremony of trial and 

presence of the factfinder may exert a powerful force and truthtelling. The opportunity 

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to judge the demeanor of a witness face-to-face is accorded great value in our tradition." 

Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 amendment. Thus, permitting a 

contemporaneous transmission in lieu of live testimony "cannot be justified merely by 

showing that it is inconvenient for the witness to attend trial." Id. Lastly, the Notes 

explain that "[a] party who could reasonably foresee the circumstances offered to justify 

transmission of testimony will have special difficulty in showing good cause and the 

compelling nature of the circumstances." Id. The determination of "[w]hether .. . to 

conduct testimony by video transmission is within the sound discretion of the trial court, 

reviewable only for abuse of discretion." Ohio A. Philip Randolph Inst. v. Householder, 2019 

U.S. Dist. LEXIS 29086 (S.D. Ohio 2019). 

Ms. Myers seeks to present three witnesses via live video-conference: Mr. Busque, 

the broker who assisted Ms. Myers in obtaining her mortgage, first discovered the errors 

on her credit report, and currently resides in Michigan; Mr. Burik, one of Ms. Myers's 

treating therapists who resides in Cincinnati, Ohio, but is experiencing health issues that 

limit his mobility and render him homebound; and Dr. Olshavsky, Ms. Myers's treating 

physician and the Medical Director at The Christ Hospital Network in Cincinnati, Ohio. 

While the Court acknowledges that Ms. Myers has identified a reason for each to testify 

via video-conference, the Court does not agree that they rise to the level of "good cause 

in compelling circumstances." 

Having reviewed the parties' arguments and applicable caselaw, in the interest of 

justice and fair presentation of evidence to the jury, the Motion to Allow Trial Testimony 

of Certain Witnesses Via Live Video-Conference (Doc. 102) is hereby DENIED. However, 

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the Court will make reasonable accommodations for any and all witnesses to testify live, 

especially those suffering from serious medical conditions. Additionally, at the Plaintiff's 

request, the Court would be inclined to accept a trial deposition in place of live testimony 

for the witnesses at issue in Plaintiff's Motion. 

IT IS SO ORDERED. 

UNITED ST A TES DISTRICT COURT By~;r:_z:r.~w 

JUDGE MATTHEW W. McFARLAND 

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