UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil No. 06-cv-58-JD

CTC Communications Corp.

O R D E R

Karen Cook brings claims against her former employer, CTC

Communications Corporation, alleging that she was terminated in

retaliation for her support of other employees' rights under a

variety of federal and state laws. Trial of the case is

scheduled to begin on Tuesday, November 13, 2007. An issue has

arisen as to the means by which a witness, Jawanna Benjamin, will

testify at trial.

Benjamin is a former employee of CTC who worked in the human

resources department with Karen Cook. She no longer works at

CTC. CTC represents that Benjamin lives in Plainville,

Massachusetts, and is a single mother with limited opportunities

for child care. 

Both Cook and CTC intend to present Benjamin's testimony at

trial. Benjamin was deposed in September of 2006. Benjamin,

apparently, has agreed to testify at trial in CTC's case, but she

had refused to testify for Cook. Because Benjamin lives more

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than 100 miles from the courthouse, she cannot be subpoenaed to

testify here.

To solve that dilemma, Cook moved for leave to have Benjamin

testify by contemporaneous transmission from an office in

Manchester, New Hampshire, which is less than 100 miles from her

home. CTC objected to that motion on the grounds that it would

be burdensome for Benjamin to come to Manchester to testify as a

witness for Cook, when she would also be testifying in CTC's case

at trial. CTC proposed that Cook rely on Benjamin's deposition

testimony or examine her during CTC's case, when she would be at

trial.

The court denied Cook's motion but ordered counsel to

communicate and to arrange to have Benjamin testify once at

trial, as she had agreed to do, but during Cook's case in chief. 

The court explained the procedure that would allow both sides

full opportunity to examine and cross examine Benjamin in turn. 

That procedure would best accommodate Benjamin's interests while

preserving the parties' rights to present their evidence. 

Ignoring the court's direction that counsel cooperate, CTC

objects to that arrangement on the grounds that Benjamin has only

agreed to testify as CTC's witness so that it would be

prejudicial to have her appear during Cook's case and that

Benjamin would be unavailable to testify on the days during which

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Cook's case in chief is likely to be presented. CTC again

opposes electronic testimony and suggests that Cook examine

Benjamin when she appears as CTC's witness. CTC reiterates

Benjamin's interests in avoiding time away from her family and

her current employment.

At the final pretrial conference, held today, the court

noted that both sides were entitled to have Benjamin testify but

that Benjamin should not be required to appear twice, given her

personal situation. The court also noted that if Benjamin's

testimony were limited to her appearance during CTC's case, a

motion for a directed verdict could be made and considered only

after Benjamin testified, which could prolong the trial

unnecessarily. For that reason, the alternative of delaying 

Benjamin's testimony, until she would appear voluntarily as a

defense witness, is not a solution to the dilemma.

Because the parties would not agree to the solution proposed

by the court of having Benjamin testify once during Cook's case,

the court will require them to take a videotape deposition of

Benjamin for trial to be scheduled at Benjamin's convenience next

week. The first deposition will be for Cook's use, and the

second for CTC's use. Counsel shall arrange to take a trial

videotape deposition of Benjamin at a date, time, and place that

is as convenient as possible for Benjamin. A transcript shall be

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prepared of the deposition before November 13, 2007. The parties

shall share equally the costs of the videotape deposition and

preparation of the transcript. In this manner, the parties will

be able to present Benjamin during each of their cases and in a

similar format. 

The court reiterates that if counsel are able to agree on an

alternative approach for presenting Benjamin's testimony, the

videotape deposition will not be necessary.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 2, 2007

cc: Heather M. Burns, Esquire

Samantha C. Halem, Esquire

Lauren S. Irwin, Esquire

Mary L. Marshall, Esquire

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