1Federal Rule of Civil Procedure 43(a) provides: "In every

trial, the testimony of witnesses shall be taken in open court,

unless a federal law, these rules, the Federal Rules of Evidence,

or other rules adopted by the Supreme Court provide otherwise. 

The court may, for good cause shown in compelling circumstances

and upon appropriate safeguards, permit presentation of testimony

in open court by contemporaneous transmission from a different

location."

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. Cook has filed an "emergency

motion" to permit a witness, Jawanna Benjamin, to testify at

trial by contemporaneous transmission from an office in

Manchester, New Hampshire. CTC objects to the motion on the

grounds that Benjamin's testimony on behalf of Cook is

"unnecessary and harassing" and because the circumstances do not

meet the requirements of Federal Rule of Civil Procedure 43.1

Case 1:06-cv-00058-JD Document 121 Filed 10/31/07 Page 1 of 4
2According to CTC's witness list, Benjamin's address is 71

Messenger Street, Plainville, Massachusetts 02762.

2

Cook represents that Benjamin has not responded to her

request to appear voluntarily to testify during the trial. The

parties agree that Benjamin lives in Plainville, Massachusetts,

which is more than 100 miles from Concord, New Hampshire, where

this court is located. As a result, Benjamin cannot be

subpoenaed to appear here for trial. See Fed. R. Civ. P.

45(b)(2). They also agree that Manchester, New Hampshire, is

less than 100 miles from Benjamin's home.2 

Benjamin was deposed in Manchester in September of 2006. 

Cook contends that CTC opposed her counsel's effort to have

Benjamin testify in a videotaped deposition. CTC contends that

Cook's counsel "did not elect to videotape Ms. Benjamin's

deposition." Obj. at 2. Instead, according to CTC, Cook's

counsel notified CTC's counsel on October 22, 2007, that a

videotape deposition of Benjamin would be taken on November 8,

2007, in Manchester, New Hampshire. CTC's counsel objected to

the videotape deposition. 

CTC states that Benjamin is a single mother with two young

children who has limited opportunities for child care. As a

result, CTC represents, Benjamin cannot return to Manchester for

a second deposition. Instead, CTC proposes that Cook be limited

Case 1:06-cv-00058-JD Document 121 Filed 10/31/07 Page 2 of 4
3

to cross-examination of Benjamin when she appears at trial as

CTC's witness.

Based on the parties' filings, Benjamin has agreed to be

present at trial to testify. Therefore, it appears to be

unnecessary to decide whether Cook can present Benjamin's

contemporaneous testimony from Manchester or require Benjamin to

give a videotape deposition before trial. Instead, counsel for

Cook and counsel for CTC will agree on a date and time for

Benjamin to appear to testify during Cook's case in chief. CTC's

cross examination of Benjamin at that time will not be limited by

the usual rules of cross examination but instead will be treated

as a direct examination. Cook will have an opportunity for

redirect examination on the topics previously raised and

addressed on direct and cross examination, and CTC will have an

opportunity for recross examination also limited to the topics

previously raised and addressed. With that schedule, Benjamin

will appear only once and no other depositions or transmissions

will be necessary to elicit her testimony. See, e.g., Morales

Feliciano v. Rullan, 378 F.3d 42, 57 (1st Cir. 2004) ("It is

axiomatic that district courts enjoy wide latitude in matters

concerning the ordering of proof and the presentation of

evidence.").

Case 1:06-cv-00058-JD Document 121 Filed 10/31/07 Page 3 of 4
4

Conclusion

The plaintiff's emergency motion (document no. 96) is

denied. This motion and objection, along with other filings in

this case, suggest a lack of cooperation among counsel that may

be detrimental to the interests of their clients and

unnecessarily involve the resources of the court. Counsel shall

communicate with each other to establish the date and time of

Benjamin's testimony at trial and to resolve other issues of this

nature without involving the court. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 31, 2007

cc: Heather M. Burns, Esquire

Samantha C. Halem, Esquire

Lauren S. Irwin, Esquire

Mary L. Marshall, Esquire

Case 1:06-cv-00058-JD Document 121 Filed 10/31/07 Page 4 of 4