Pathri v. Kakarlamath

462 N.J.Super. 208

225 A.3d 559

Phaninder PATHRI, Plaintiff-Appellant,

v.Srivani KAKARLAMATH, Defendant-Respondent.

DOCKET NO. A-4657-18T1

Superior Court of New Jersey, Appellate Division.

Argued December 17, 2019

Decided January 23, 2020

Gregory A. Pasler argued the cause for appellant (Townsend Tomaio & Newmark, LLC, attorneys; Gregory A. Pasler, on the briefs).

Adam Wiseberg argued the cause for respondent (Ziegler, Zemsky & Resnick, attorneys; Adam Wiseberg, on the brief).

Before Judges Fisher, Gilson and Rose.

The opinion of the court was delivered by

FISHER, P.J.A.D.

In most respects, the bench and the bar might – with apologies to Gilbert and Sullivan – proclaim the court rules to be "the very model of a modern" set of civil guidelines.¹ But, in one respect, the rules haven't quite caught up to the technological revolution. So, feeling "plucky and adventury,"² we granted leave to appeal to consider how a judge should assess a party's request to appear at trial and present testimony by way of contemporaneous video transmission.³

The issue arose in this matrimonial action. The parties came to the United States from India in 2007. They have two minor children. Plaintiff filed this suit in 2018 and, soon after, moved back to India. Defendant filed a counterclaim for a divorce. She and the children reside in Maryland. In May 2019, the judge set the matter down for a trial to occur in June 2019. A week before the scheduled trial, plaintiff moved in limine, claiming he was unable to obtain a visa to enter this country; he requested to appear and testify at trial from India by contemporaneous video transmission. Finding such a procedure would inhibit her ability to assess plaintiff's testimony and credibility, the judge denied the motion. We proceeded on an emergent basis, stayed the divorce trial, and granted leave to appeal.

Our court rules do not provide for testimony by way of contemporaneous video transmission, but they don't prevent it either. In fact, trial testimony may be presented in a number of ways that do not require the witness' physical presence. Most notably, juries are routinely presented with videotaped testimony of physicians, see R. 4:14-9(e); in those instances, juries must assess the credibility of those physicians and assign the weight to be given to the recorded testimony only by what they see on and hear from a video screen. Obviously, the rule bespeaks our confidence in the ability of juries to perform their important function without witnesses' physical presence. Videotaped testimony is also permitted in certain criminal proceedings, see R. 3:13-2(a), and video appearances are permitted in municipal courts, see R. 7:8-7. Telephone testimony is authorized in actions to determine whether an individual is incapacitated. R. 4:86-6(a).

The rules, however, provide no other guidance about when testimony by contemporaneous video transmission may occur. In considering the propriety of telephonic testimony at a post-conviction relief hearing, the Supreme Court acknowledged that the rules "do not expressly require [live, in-person testimony]" while also finding that the rules do not "directly prohibit remote testimony by telephone." State v. Santos, 210 N.J. 129, 139, 42 A.3d 141 (2012). In denying relief here, the trial judge relied on Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264, 551 A.2d 195 (App. Div. 1988), which provided the grounds for allowing testimony by telephone. The fact that the opinion was written over thirty years ago – decades before Skype, FaceTime, and the like were even dreamt of – should give us pause. The fact that Aqua Marine considered only the presentation of remote testimony heard but not seen is a factor that also greatly distinguishes what was requested here. Our 1988 opinion reveals our concern that the trial judge permitted telephonic testimony over the other party's objection; we were troubled by that ruling because "[t]here was no way to ascertain [the witness'] identity, even to assure that he was who he said he was." Id. at 274, 551 A.2d 195. We also reversed the judge's ruling because "there was no basis at all on which the indefinable and elusive indicia of credibility, denominated ‘demeanor,’ could be evaluated by the fact-finder." Ibid. Out of these concerns, we constructed a two-part test that would allow telephonic testimony only in "special situations in which there is either exigency or consent and in which the witness' identity and credentials are known quantities." Id. at 274-75, 551 A.2d 195.

In Santos, the Court appears to have accepted Aqua Marine as expressing the proper standard for determining if or when telephonic testimony should be allowed. 210 N.J. at 141-42, 42 A.3d 141. But the Court proceeded further by briefly considering the propriety of contemporaneous video transmission, as the parties' arguments morphed beyond the initial request for telephonic testimony:

Before our Court both parties offered suggestions on how remote testimony could be presented in a way that might satisfy concerns about witness identification, oath administration, and the assessment of witness demeanor. Indeed, the arguments ventured past use of the telephone to more modern forms of video communication, presumably in an effort to satisfy the types of concerns about the integrity of remote testimony addressed in Aqua Marine. The intriguing and important issues raised through that argument only augment our initial concern that there should not be a grant of telephonic testimony, or even a superior form of video-communication testimony, until and unless there is a satisfactory demonstration that the means to be used will ensure the essential integrity of the testimony for factfinding purposes.

[ Id. at 142, 42 A.3d 141.]

The Santos Court made no further attempt to define when contemporaneous video transmission might be permitted, or what conditions ought to be imposed to obtain certainty about the witness' identity and ensure factfinding integrity, because it found no evidentiary hearing was required in the case before it. Id. at 145-46, 42 A.3d 141. Because – as the Santos Court held – the rules do not prohibit remote video testimony in civil matters,⁴ we see no reason why a family judge could not permit testimony by contemporaneous video transmission in appropriate circumstances. So, even though expressed only briefly, without finality, and in dictum,⁵ we approach the issue presented here by assuming, as Santos suggests, that Aqua Marine still provides guidance in this century and that its two-part test requiring "exigency" and certainty in the witness' identity must be satisfied.

To appreciate the concerns that gave birth to Aqua Marine's holding, we briefly consider its unusual facts. The case included a contractual claim about a rejected piece of machinery. 229 N.J. Super. at 266-67, 551 A.2d 195. At the trial's start, the name of a North Carolina company that purchased the rejected machinery was revealed; one of the parties reached out to that company and, over the other's objection, obtained the trial judge's approval to hear a company representative testify by telephone. Id. at 273, 551 A.2d 195. It was in this context – where there was no apparent discovery or prior investigation about the North Carolina company's involvement and how the testimony was sprung on the other side – that we expressed our deep concern about the allowance of telephonic testimony without consent. We thus insisted that in future cases a party would have to show – absent consent – an exigent reason for departing from the norm of in-person testimony and provide assurance as to the credentials of the person on the other end of the telephone. Those circumstances are a far cry from what is sought here. Moreover, we must look at what plaintiff seeks by understanding both the extraordinary advancements in technology that have occurred since Aqua Marine, and by the dramatically different circumstances in which the issue has risen here.

We also find helpful Federal Rule of Civil Procedure 43(a), which was amended more than twenty years ago to allow trial testimony via contemporaneous video transmission from a different location "[f]or good cause in compelling circumstances and with appropriate safeguards[.]" The advisory committee notes to this 1996 amendment make clear that the rule intends that there be both a demonstration of "good cause in compelling circumstances" and the imposition of appropriate conditions, because in-person testimony remains preferable to any other alternative. That is, the amended federal rule recognizes the propriety of alternative methods while also holding, as self-evident, that the "very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling."

It seems to us that what we referred to in Aqua Marine as an "exigency" and what the federal rule describes as "good cause in compelling circumstances" are two ways of expressing the same thing. Although neither Aqua Marine nor Federal Rule of Civil Procedure 43(a) identifies the factors relevant to the disposition of such an application as was denied here, we conclude that judges should consider the following:

• the witness' importance to the proceeding; • the severity of the factual dispute to which the witness will testify;

• whether the factfinder is a judge or a jury;

• the cost of requiring the witness' physical appearance in court versus the cost of transmitting the witness' testimony in some other form;

• the delay caused by insisting on the witness' physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;

• whether the witness' inability to be present in court at the time of trial was foreseeable or preventable; and

• the witness' difficulty in appearing in person.

The logic of the first factor should be readily apparent. The greater the witness' importance in the dispute, the...