Graham v. Bristol Hospice Holdings

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ELIZABETH GRAHAM,
Plaintiff,
v.
BRISTOL HOSPICE HOLDINGS, INC.,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION IN LIMINE TO PERMIT
REMOTE TESTIMONY OF FAITH
MYERS
Case No. 2:21-cv-00754-TS-DBP
Judge Ted Stewart
Magistrate Judge Dustin B. Pead
This matter is before the Court on Defendant Bristol Hospice Holdings, Inc.’s Motion in
Limine to Permit Remote Testimony of Faith Myers.1 For the reasons discussed below, the Court
will deny the Motion.
I. BACKGROUND
This matter is set for a six-day jury trial to begin on January 26, 2026. In anticipation of
trial, Defendant filed the present Motion to permit one of its witnesses, Faith Myers, to testify
remotely via video call. Ms. Myers lives and works in Bakersfield, California.2 She is expected
to testify about her conversations with Plaintiff and the training she received from Plaintiff. This
information is relevant to the issues in this case as discussed in the Court’s previous Order
denying the parties’ motions for summary judgment. Defendant asserts that requiring Ms. Myers
to travel to Salt Lake City to testify in the upcoming trial, would impose an unreasonable burden
1 Docket No. 44.
2 Id. at 2.
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on her.3 Plaintiff objects and argues that Defendant fails to show good cause to support remote
testimony.
II. DISCUSSION
Pursuant to Federal Rule of Civil Procedure 43(a), “[a]t trial, the witnesses’ testimony
must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules,
or other rules adopted by the Supreme Court provide otherwise.” However, “[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.”4 “[A] district court’s
decision whether to allow remote testimony pursuant to Rule 43(a) is reviewed for abuse of
discretion.”5
“Mere inconvenience does not satisfy Rule 43(a)’s standard.”6 “In general, the [R]ule
contemplates situations where a witness cannot appear in person ‘for unexpected reasons, such as
accident or illness[.]’”7 “Other reasons ‘must be approached cautiously.’”8
Defendant argues that because Ms. Myers resides outside of the Court’s subpoena power,
good cause exists to allow remote testimony. Federal Rule of Civil Procedure 45(c) provides that
“[a] subpoena may command a person to attend a trial . . . as follows: (A) within 100 miles of
where the person resides, is employed, or regularly transacts business in person; or (B) within the
3 Id.
4 Fed. R. Civ. P. 43(a).
5 Eller v. Trans Union, LLC, 739 F.3d 467, 477 (10th Cir. 2013).
6 Blackmore v. Ramirez, No. 4:21-cv-00026-AMA-PK, 2025 WL 1311121, at *1 (D.
Utah May 6, 2025) (citing Gil-Leyva v. Leslie, 780 F. App’x 580, 587 (10th Cir. 2019)).
7 Gil-Leyva, 780 F. App’x at 587 (quoting Fed. R. Civ. P. 43(a) advisory committee’s
note to 1996 amendment).
8 Id. (quoting Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment).
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state where the person resides, is employed, or regularly transacts business in person, if the
person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur
substantial expense.”9
Defendant cites to Diener v. Malewitz,10 in which a court in the District of Wyoming
granted a motion allowing remote testimony finding that the request was “not because it [was]
merely inconvenient for the witnesses to attend trial.”11 Instead, the court assumed that the
plaintiffs had “‘made an effort to make available those witnesses over whom they have control or
sway and that the [m]otion [was] made in good faith and because the witnesses are not available
for production in [court].”12 Defendant does not provide evidence to support such an argument in
this case and argues that Ms. Myers’ willingness to testify at trial is irrelevant to whether the
Court can subpoena her or whether she should be allowed to testify remotely.13 Additionally, the
remaining cases Defendant cites to for support are not particularly persuasive as three of the
cases involve multidistrict litigation cases involving application of case law that is not
controlling here and the other case involves a motion to quash a subpoena for a virtual deposition
during the Covid-19 pandemic.14 The Court finds that good cause does not exist to permit Ms.
Myers to testify remotely simply because she resides outside of the Court’s subpoena power.
The Tenth Circuit has acknowledged that “courts have sometimes upheld the use of
remote testimony in instances where the witness was located far from the site of the trial or
9 Fed. R. Civ. P. 45(c).
10 Nos. 18-CV-85-J, 18-cv-117-J, 2019 WL 13223871 (D. Wyo. Oct. 18, 2019).
11 Id. at *7.
12 Id. (internal quotation marks and citation omitted).
13 Docket No. 51, at 6.
14 See Docket No. 44, at 3–4.
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hearing.”15 For example, a court in this district recently concluded that good cause existed to
permit a witness to testify remotely at trial when the witness resided over 7,000 miles away from
the courthouse. The court concluded that requiring the witness to travel such a distance would be
unduly burdensome to the witness and unreasonably costly to the party calling the witness.16
The same concerns do not exist here. Defendant asserts that such travel would “pose an
unnecessary burden on [Ms. Myers],”17 that Ms. Myers has demanding job responsibilities and
requiring her to travel to testify in person is “wasteful and inefficient.”18 The Court, in keeping
with a cautious approach prescribed by the Tenth Circuit, does not find that this demonstrates
good cause to permit Ms. Myers to testify remotely. While it may be inconvenient for Ms. Myers
to travel to Utah from California, mere inconvenience does not satisfy good cause. The Court
does not find travel between the two states to be unduly burdensome or costly.
Plaintiff argues that Ms. Myers is not a necessary witness because her testimony is likely
inadmissible hearsay and therefore “not vital to the trial.” On the contrary, the Court believes
Ms. Myers to be an important witness in this matter. Furthermore, the Court will not consider
Plaintiff’s arguments regarding hearsay, however Plaintiff may raise objections at trial if
appropriate.
In its Reply, Defendant argues that if the Court denies the Motion, the Court should allow
the parties to take Ms. Myers’ video deposition and use it at trial. If the parties can agree to
conduct the video deposition before the scheduled trial, the Court will allow Defendant to do so.
15 Eller, 739 F.3d at 478 (collecting cases).
16 Blackmore, 2025 WL 1311121, at *2.
17 Docket No. 44, at 4.
18 Docket No. 51, at 5.
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III. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion to in Limine to Permit Remote Testimony of Faith
Myers (Docket No. 44) is DENIED.
DATED January 6, 2026.
BY THE COURT:
________________________________________
TED STEWART
United States District Judge
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