At a divorce trial, testimony by Skype will be allowed for the appraiser of an Oslo apartment. So held New York County Supreme Court Special Referee Louis Crespo in his April 3, 2014 decision in Steineger v. Perkins.

Among other discovery-related applications after the matter had been placed on the trial calendar, Referee Crespo, upon the husband’s request, authorized updated appraisals. These included the parties’ Oslo apartment that had been purchased in or about 2011 for $1,400,000. The Referee noted that the appropriate value should be the most recent date, “as distribution of the marital assets based on older values can result in a windfall profit for one of the parties over the other.”

The Referee also ruled that the husband will be allowed to call the real estate appraiser of the Oslo apartment viz-a-viz [sic; vis-à-vis literally meaning face-to-face] Skype conditioned on the following:

  1. the appraiser speaks the English language without the need of a Norwegian interpreter;
  2. his attorney provides the computer laptop to access Skype by way of the internet;
  3. the appraiser shall be examined in an office without outside interference; and
  4. and that the appraiser consents to the jurisdiction to the Court although testifying outside of New York.

The Court finds that calling a non-party witness, although retained by a party, by way of Skype is reasonable given the time constraints and expense to fly in a witness from Norway for the limited purpose of providing an opinion as to the value of the apartment. In addition, with the use of live, two-way video via Skype, the witness will be subject to cross-examination before the Special Referee and attorneys for the parties, making the testimony reliable.

As the fact finder, the Referee ruled, measuring credibility will not be compromised because the method to measure the same can be had by way of two-way video via Skype. Finally, the opinion testimony will not involve materially disputed facts, such as observations of an event, and will avoid the unnecessary costs of flying in a witness to testify about the value of the Oslo apartment. Referee Crepo noted that this was not a criminal case where a liberty interest is at stake. He found that the Skype protocol in this instance would allow for live witness testimony presented through real-time. Effective cross examination as well as the assessment of the witness’ credibility would not be hampered.

Quoting from Jessica M. Natale, Exploring Virtual Legal Presence: The Present and the Promise, 1 J. High Tech. L. 157, 167 [2002], Referee Crespo noted “The court system has recognized the benefits and validity of being virtually present as opposed to physically present. Virtual presence presents witnesses with an inexpensive alternative to testifying over the Internet via video and audio technology.”

Finally, the Referee stated the Skype protocol was vastly superior to testimony by speaker phone which had been permitted in another case (Superior Sales & Salvage v. Time Release Sciences, 227 A.D.2d 987, 643 N.Y.S.2d 291 [4th Dept. 1996; trial court did not err in permitting defendant’s witness to go on vacation and to conclude his cross-examination testimony by speaker phone]).

Although not cited by the Referee, testimony by Skype was also allowed by Sullivan County Court Judge Frank J. Labuda in People v. Novak, 41 Misc. 3d 733, 971 N.Y.S.2d 197 (2013). The defendant, charged with murder, requested that Skype be used as his desired witness would be unable to appear due to work constraints. Judge Labuda noted that the witness would be subject to cross-examination before a jury, and concerns regarding constitutional Confrontation Clause issues were minimized.