Witness Location “Close” to 100 Miles Away Not Close Enough to Meet Rules Requirement

The credibility of a witness sways jurors decisions. A witness’s account of events is so important Federal Rule of Civil Procedure 32(a)(4)(E) only allows a deposition to be used in place of a live witness when “exceptional circumstances make it desirable”. When Chelsea Swearingen sued her former employer, Gillar Home Health Care. L.P., for wrongful termination, Gillar filed a motion to use a key witness’s deposition instead of requiring her to appear in person. The Fifth Circuit found the witness did not meet the terms of “exceptional circumstances” because she lived 95.5 miles from the courthouse, not the 100 miles required by The Rule. The Court found her lack of in-person testimony so detrimental to the case it reversed the judgment and remanded for a new trial. http://www.ca5.uscourts.gov/opinions/unpub/17/17-20600.0.pdf