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Witness Vaccine Status at Issue Before Columbia Retirement Trial

March 30, 2021, 5:57 PM

Witnesses for Columbia University who don’t want to appear in person at an April trial over the school’s retirement plan should be ordered to tell the presiding federal judge in Manhattan whether they’ve received a Covid-19 vaccine, university employees said.

The class of 28,000 Columbia retirement plan participants objects to the school’s bid to have its 15 fact witnesses avoid appearing in person to testify at the upcoming trial, scheduled to begin April 12 in the U.S. District Court for the Southern District of New York.

Columbia has said only that these witnesses either “prefer” not to testify in person or would be “uncomfortable” doing so, without giving information about the witnesses’ health conditions, vaccination statuses, or other reasons for declining to appear in person, the plan participants said in a motion Monday.

Columbia should have to tell presiding Judge George B. Daniels whether these witnesses have been vaccinated, they said.

“To ensure that the Court receives the most probative form of testimony while also respecting witnesses’ reasonable concerns, Plaintiffs respectfully request that the Court order Defendant to submit in camera the current and anticipated vaccination status of each witness seeking to avoid in-person testimony and the particular reason(s) that he or she would ‘prefer’ not to attend or would be ‘uncomfortable’ testifying in person to allow the Court to determine whether ‘good cause’ and ‘compelling circumstances’ exist under Federal Rule of Civil Procedure 43 to allow witnesses to avoid in-person testimony,” the plan participants said.

The participants expressed their preference for live testimony, saying that their attorneys’ “personal experience during the COVID-19 pandemic has been that, no matter how prepared witnesses are for video testimony, there are inherent challenges in testifying remotely, and witnesses who testify remotely deliver less effective testimony.”

They also emphasized the effectiveness of various safety precautions.

Given the “extraordinary efficacy of COVID-19 vaccines, vaccinated witnesses, who are at extremely low risk of contracting or transmitting COVID-19, should bear the burden of explaining why it would still be a ‘real inconvenience’ to testify in person with robust antibodies and two masks, and at a six-foot distance from every other person in the courtroom,” they said.

The lawsuit claims Columbia employees lost money because of the defendants’ retirement plan mismanagement. Last spring, Daniels allowed the case to go to trial.

Schlichter Bogard & Denton LLP represents the class. Mayer Brown LLP represents Columbia.

The case is Cates v. Trs. of Columbia Univ., S.D.N.Y., No. 1:16-cv-06524, motion for ruling on witness testimony 3/29/21.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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