LUXCOM files its response – responding as to phone v video testimony and meekly challenging the witness as well as the location of the hearing.

Obviously the LUXCOM lawyers fear the 'home field advantage' - This is a hearing before a neutral Judge, not a sporting event where the crowd pumps up the home team. Location for me has always been about transportation (love riding the Metrorail to the courthouse) and/or easy parking and access for me to meet and consult with the clients and witnesses who will be participating in the proceedings.

CLICK HERE to download (from the actual DOAH docket online) the PETITIONER’S RESPONSE TO RESPONDENT’S MOTION FOR TELEPHONIC APPEARANCE filed by LUXCOM.

This is an update to a PRIOR RELATED POST of Monday, November 18, 2019, LUXCOM litigation update: PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated out of the Country.

The main points of LUXCOM's argument are:

First, Petitioner objects to phone testimony since it would not allow Petitioner, its counsel and the trier of fact in these proceedings - the Administrative Law Judge - to visually observe Mr. Kahn and his demeanor while testifying.  LUXCOM lawyers argue that everyone participating in the proceedings should have the ability to visually observe this witness and his demeanor. 

This was not unexpected and was discussed in the prior related post of Monday, 11/18.

Secondly, and somewhat awkward, this response serves as a backdoor renewal of the objection to the location of the hearing:
“On a final note, Petitioner previously objected to the current location of the final hearing – Respondent’s own facilities in the Village of Palmetto Bay.” LUXCOM ’renewed’ its objection, alleging that the Palmetto Bay Village Hall “… is anything but a neutral location and it should be moved to the Department Of Administrative Hearing’s video teleconferencing site in Miami which is clearly a neutral and fair location to both sides.” 

Again, I have never personally believed in the ‘home field’ advantage insofar as location of proceedings. There will be no fan advantage and I am sure that the LUXCOM attorneys will be able to maintain their concentration in the face of the hordes of Palmetto Bay home town spectators that they fear.  (So I ask my fellow Palmetto Bay residents to please leave your cowbells and foam fingers at home if you attend the December hearing live.)

On a serious note, there is a crack in the door on revisiting the location of hearing. The real issue is the ability to properly set up teleconferencing. The location of the hearing will turn on whether Palmetto Bay can properly accommodate video teleconferencing.

IMPACT: Expect video testimony and a change in location of the hearing if Palmetto Bay cannot properly accommodate video conferencing for Mr. Khan to testify from India.  I expect that Palmetto Bay will be able to accommodate video conferencing. 

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  2:00 PM, Monday, 11/25/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.