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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

OHIO A. PHILIP RANDOLPH INSTITUTE, Case No. 1:18-cv-357

et al.,

Judge Timothy S. Black

Plaintiffs, Judge Karen Nelson Moore

Judge Michael H. Watson

v.

LARRY HOUSEHOLDER Speaker of the

Ohio House of Representatives, et al.,

Defendants.

ORDER GRANTINING PLAINTIFFS’ MOTION

TO OFFER TRIAL TESTIMONY OF

U.S. CONGRESSWOMAN MARCIA FUDGE

IN OPEN COURT BY LIVE VIDEOCONFERENCE

This case is before the Court upon Plaintiffs’ motion to permit the testimony of 

Congresswoman Marcia L. Fudge, United States Representative for Ohio’s 11th 

Congressional District, by way of live videoconference in open court (Doc. 220). The 

Intervenors have filed a memorandum in opposition (Doc. 223) as to which Plaintiffs 

have filed a reply memorandum (Doc. 225). Defendants have recently filed a 

memorandum in opposition (Doc. 229).

Federal Rule of Civil Procedure 43(a) provides 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.” 

The Rule’s 1996 Advisory Committee Notes caution that “[t]ransmission cannot be 

justified merely by showing that it is inconvenient for the witness to attend the trial.”
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Plaintiffs argue that the exceedingly demanding occupation and newly 

unpredictable schedule of a member of the U.S. Congress, the unexpected compacting of 

the legislative calendar due to the Government’s recent 34-day shut-down, and the 

burdens of interstate travel provide good cause under compelling circumstances for the 

Court to exercise its discretion and permit the Congresswoman’s testimony to occur live 

during trial via videoconference. The Intervenors and Defendants urge the Court to reject 

such reasoning.

Whether and how to conduct testimony by video transmission is within the sound

discretion of the trial court, reviewable only for abuse of that discretion. See, e.g., Palmer 

v. Valdez, 560 F.3d 965, 968-69 (9th Cir. 2009) (reviewing for abuse of discretion only); 

Air Turbine Tech. Inc. v. Atlas Copco AB, 410 F.3d 701, 714 (Fed. Cir. 2005). The trial 

court’s determination is highly fact specific and can be based on concerns as varied as the 

difficulty of long-distance travel, to security or medical issues. See, e.g., Beltran-Tirado 

v. INS, 213 F.3d 1179, 1185-86 (9th Cir. 2000) (affirming decision to allow a Missouri 

resident to testify telephonically at a deportation proceeding held in California); FTC v 

Swedish Match N. Am., Inc. 197 F.R.D. 1, 1-2 (D.D.C. 2000) (finding “serious 

inconvenience” in requiring a resident of Oklahoma to appear as a witness in Washington 

D.C.). In evaluating the good cause for testimony by videoconference, this Court is 

mindful that Congresswoman Fudge “will testify through live video in open court, under 

oath, and defendants will have the opportunity to cross-examine the witness.” See

Swedish Match, 197 F.R.D. at 2. 
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Here, live transmission will allow the Court to observe not only Congresswoman 

Fudge’s words but also her demeanor, and it will also give the Panel the opportunity to 

ask Congresswoman Fudge questions directly, ensuring useful testimony for our 

consideration. Indeed, videoconferencing simulates in-person trial testimony more 

closely than would a deposition, and thus better serves the fact gathering purpose of 

testimony. This case also presents issues of great public concern, and the interests of the 

community in open, contemporaneous, public testimony would be best served by live 

video testimony. Finally, deposition testimony at this point in time would be a far more 

burdensome proposition for the parties and the Court. 

Here, an important witness is likely to be unavailable at this trial, and live

transmission is both the most reliable and the least burdensome substitute manner of 

securing her testimony. Videoconferencing will allow this Court to assess the 

Congresswoman’s credibility and demeanor firsthand and contemporaneously in a 

courtroom proceeding, and to ask any questions that may arise. A recorded deposition 

would do neither, and is no substitute for live, interactive testimony. Accordingly, in this 

particular case, Congresswoman Fudge’s extremely demanding profession, newly 

unpredictable schedule, and the burdens of interstate travel together constitute good cause 

under Rule 43.

The Court therefore GRANTS Plaintiffs’ motion (Doc 220). Plaintiffs’ counsel 

shall communicate immediately with the Court’s IT representative

 (Richard_St.John@ohsd.uscourts.gov or (513) 564-7533) 

to coordinate the presentation of the testimony by live videoconference.
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IT IS SO ORDERED.

Date: February 25, 2019 

s/ Timothy S. Black 

TIMOTHY S. BLACK 

United States District Judge 

s/ Karen Nelson Moore 

KAREN NELSON MOORE 

United States Circuit Judge 

s/ Michael H. Watson 

MICHAEL H. WATSON 

United States District Judge