. . . The firefighters and MM&A employees left the train around 12:13 am on July 6, 2013, after satisfying themselves that the fire was extinguished and that the train was safe. . . .
. . . This matter, therefore, added a cross-border twist to a growing split of authority among federal courts concerning the interplay between Rule 45’s 100-mile geographic limitation on compelling the appearance of trial witnesses and Rule 43’s permission of trial testimony by livestream transmission. . . .
On September 30, 2021, the United States District Court for the District of Maine ruled on two requests for judicial assistance pursuant to 28 U.S.C. § 1782 from the Quebec Superior Court in the Province of Quebec, Canada. See In re Application of Attorney General of Quebec, Civ. Nos. 1:21-mc-00264-JCN, 1:21-mc-00266-JCN (D. Maine Sep. 30, 2021) (“In re Quebec Application”). The petitioner of those requests, the Attorney General of Quebec, asked the district court to issue subpoenas for the testimony of two individuals, Paul Budge and Lynne Labonte, for use at a trial in the Quebec Superior Court. Id.
The court declined to follow a small but growing trend of cases that compel witnesses located beyond the 100-mile boundary of Fed. R. Civ. P. 45 to appear at trial by livestream videoconference. Id. The court instead ordered the two witnesses to sit for videotaped depositions in Maine rather than appear by videoconference at the trial in Quebec. Id.
This is not the first time that Budge and Labonte have appeared on a trial witness list in the Quebec courts. The two witnesses, who reside in Maine, were executives of the Montreal, Maine & Atlantic Railway (MM&A)—the company involved in one of Canada’s deadliest rail accidents on July 6, 2013. The facts of that rail disaster, although complex, are briefly summarized below to provide an understanding of the treatment of Budge and Labonte as witnesses in the first trial and to set the stage for the district court’s ruling on the recent request for judicial assistance from the Attorney General of Quebec in subsequent litigation commencing this year.
The train involved in the disaster was a five-engine train pulling 72 tank cars—each loaded with 30,000 gallons of petroleum crude oil. Pursuant to a controversial MM&A cost-cutting policy, the train was operated by a single engineer. At approximately 11:00 pm on July 5, 2013, the engineer brought the train to a stop in the town of Nantes, Quebec with the intention of setting the train’s brakes to immobilize the train until the arrival of the next shift’s engineer the following morning.
Before departing for his hotel, the engineer set a series of mechanical “hand brakes” in each of the train’s five locomotive engines and, for good measure, left one of the diesel engines running in order to fully engage the train’s airbrake system. After setting the brakes, the engineer took a taxi to his hotel in nearby Lac-Megantic. The route traveled by the engineer’s cab paralleled the MM&A railway tracks along the seven-mile 1.2% downward grade to Lac-Megantic.
After the engineer’s departure and at approximately 11:50 pm, the Nantes Fire Department responded to a 911 call, reporting a fire on one of the train’s locomotive engines. The fire was apparently started by a fractured piston in the engine left running by the engineer. The troubled engine was leaking diesel fuel which fed the growing flames. To quell the flames and stop the flow of diesel fuel, the firefighters shut down the locomotive engine with the assistance of two MM&A track maintenance employees who also had arrived on the scene. The firefighters and MM&A employees left the train around 12:13 am on July 6, 2013, after satisfying themselves that the fire was extinguished and that the train was safe.
The train was not safe.
With no operating engine, the air compressors no longer fed compressed air into the train’s airbrake system. As air leaked from the system and the internal pressure fell, the airbrakes eventually released their securing grip on the train’s wheels. By approximately 12:56 am, the potential energy of the train’s mass resting on the downward-sloped tracks finally overcame the force applied by the manual hand brakes, and the train began rolling unattended and unannounced toward the sleeping town of Lac-Megantic.
Trains passing through Lac-Megantic ordinarily comply with a 10-mph speed limit, which safely conveys a train along the curving downtown tracks. The runaway tanker train, however, reached downtown Lac-Megantic at approximately 1:14 am, traveling at least 65 mph. The train derailed, hurtling itself into surrounding buildings and releasing over 1.6 million gallons of crude oil, which instantly caught fire. Half of Lac-Megantic’s downtown was destroyed by the derailment and ensuing fire. Later, all but three of the remaining downtown buildings were demolished due to crude-oil contamination. The human tragedy overwhelmed the small town with 47 of its members losing their lives.
For additional details and summary of the derailment, see generally Lac-Megantic Runaway Train and Derailment Investigation Summary, Transportation Safety Board of Canada, Report No. R13D0054 (August 2014).
On October 2, 2017, a little over four years after the accident, the train’s engineer, a rail traffic controller, and an operations manager were placed on trial in Quebec, accused of 47 counts of criminal negligence. See Trial Underway for Ex-Railway Employees Charged in Lac-Megantic Train Disaster, The Hamilton Spectator (October 2, 2017). The trial involved numerous witnesses and exhibits and extended into January 2018 when the case was finally given to the jury, which acquitted the three defendants on all counts. See Lac-Mégantic: un procès qui n’aurait pas dû avoir lieu, dit Me Walsh, la Tribune (Jan. 12, 2018).
Although MM&A executives, Budge and Labonte, were on the trial witness list, they did not appear in court to testify. Id. The court noted that the witnesses are U.S. citizens and ruled that “[a]lthough . . . they are a short distance from the judicial district in which trial is being held, . . . they are not compellable.” Id. The prosecution requested that they testify by videoconference, but the judge denied the request, noting that the rules of criminal procedure require a witness’s physical presence in the courtroom for a fair trial. Id.
The derailment disaster spawned numerous lawsuits both in Canada and the United States. The most recent is a class action lawsuit that commenced on September 21, 2021 in Quebec against Canadian Pacific (“CP”), which had interchanged the transport of the tank cars from a CP rail line to MM&A and its short-haul route through Lac-Megantic. See Lac-Mégantic : le recours civil contre le Canadien Pacifique s’amorce, Droit-Inc. (Sep. 20, 2021); https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054.pdf (pgs. 6-7). The court has set aside seven months for the proceedings in which the Attorney General of Quebec is participating along with the class representatives and insurance companies. Id. During the seven-month trial, the court is expected to hear from over 100 witnesses. See Lac Megantic class action against CP begins; could last seven months, revealing new answers, CTV News (Sep. 22, 2021).
In the civil rather than criminal context of this most recent request for testimony, the Attorney General of Quebec asked the U.S. court to compel Budge and Labonte to appear at trial by livestream videoconference, while acknowledging that “no court has specifically addressed remote trial testimony in a foreign proceeding through the Letters Rogatory process.” In re Quebec Application at 2. This matter, therefore, added a cross-border twist to a growing split of authority among federal courts concerning the interplay between Rule 45’s 100-mile geographic limitation on compelling the appearance of trial witnesses and Rule 43’s permission of trial testimony by livestream transmission.
By way of background, Rule 45 authorizes a district court to “command a person to attend trial” only when the courthouse is “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A). In contrast, however, Rule 43 states that ordinarily “witnesses’ testimony must be taken in open court” but provides that “[f]or good cause in compelling circumstances and with the appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a).
The interplay of these two rules is far from settled.
Some courts have conservatively held that Rule 43’s permission of livestream testimony does not “obviate the limitations that Rule 45 places on a court’s subpoena power.” In re EpiPen Mktg., Sales Pracs. & Antitrust Litig., Case No. 17-md-2785-DDC-TJJ, 2021 WL 2822535, at *3 (D. Kan. July 7, 2021). These courts reason that without the geographic limitation of Rule 45, “any arbitrator sitting anywhere in the country [would have] the unbounded power to compel remote testimony from any person residing anywhere in the country.” Broumand v. Joseph, No. 20-cv-9137 (JSR), 2021 WL 771387, at *10 (S.D.N.Y. Feb. 27, 2021).
Other courts, however, view the 100-mile geographic limitation in Rule 45(c) as restricting only the distance a witness can be compelled to travel in order to comply with a trial subpoena. In other words, “the 100-mile limitation now found in Rule 45(c) has to do with the place of compliance; not the location of the court from which the subpoena issued.” In re: 3M Combat Arms Earplug Prods. Liab. Litig., Case No. 3:19md-2885, 2021 WL 2605957, at *4 (N.D. Fla. May 28, 2021) (citation and internal quotation marks omitted). These courts reason that “Rule 45(c)’s geographic limits were crafted to protect third parties from the undue burden of traveling more than 100 miles to provide testimony or produce documents in a proceeding to which they are not a party.” United States v. $110,000 in U.S. Currency, No. 21 C 981, 2021 WL 2376019, at *3 (N.D. Ill. June 10, 2021); see also In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2017 WL 2311719, at *4 (E.D. La. May 26, 2017). Even still, most of these courts require Rule 43’s “good cause” showing before ordering a witness to appear at trial by livestream videoconference beyond Rule 45’s geographic boundary. See, e.g., In re Vioxx Prods. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006); Official Committee of Unsecured Creditors v. Calpers Corporate Partners, LLC, No. 1:18-cv-68-NT, 2021 WL 3081880, at *3 (D. Me. July 20, 2021).
In responding to the Attorney General of Quebec’s request to order Budge and Labonte to appear at the Canadian trial by livestream videoconference, the court acknowledged the diverging views among the federal district courts concerning the interplay between Rules 45 and 43. See In re Quebec Application at 2. The court reasoned, however, that under the circumstances of a request for testimony from a foreign tribunal by Letters Rogatory, a court’s “authority is governed by § 1782, which authorizes the district court to order a person to give testimony ‘for use in a proceeding in a foreign or international tribunal.’” Id. Accordingly, under “[t]he statute’s language and case law,” a court is authorized to “facilitate pretrial discovery rather than trial testimony.” Id. (citing In re Porsche Automobil Holding SE, 985 F.3d 115, 120 (1st Cir. 2021) (“Section 1782 authorizes district courts to order persons residing in their district to participate in discovery ‘for use in a foreign or international tribunal’”)).
Although the court declined to compel the witnesses to appear at the Canadian trial by livestream videoconference, the court granted the Attorney General of Quebec’s alternative request to remotely conduct videotaped depositions of the two witnesses. Id. The court explained that “given that [Rule] 30 specifically authorizes the Court to order a deposition be taken by remote means,” the court need not require Canadian counsel to travel to the witnesses’ locations to take the depositions. Id. The court further provided an incentive to the witnesses to avoid the depositions by ordering that “[a]fter service of a subpoena [for deposition], if a witness prefers, the witness can agree to testify remotely at trial.” Id. at 3.
Not surprisingly, in this first-impression case, the court declined to expand Section 1782 beyond its historic use as a means to accommodate discovery requested by Letters Rogatory from a foreign tribunal. The growing prevalence and familiarity of videoconferencing technology during the recent pandemic, however, may increasingly motivate courts to accommodate requests for livestream testimony. In granting a request for remote deposition, at least one court commented that the “parties have proceeded virtually for 15 months, due to the threat posed by the ongoing COVID-19 pandemic” and that “the Court will not require the Government attorneys from Nebraska to travel to Chicago when substantially the same result is available digitally.” $110,000 in U.S. Currency, 2021 WL 2376019, at *3-*4. In view of these rapidly changing technologies and circumstances, it may just be a matter of time before U.S. situated witnesses are ordered to appear by livestream videoconference directly in foreign proceedings.