With the COVID pandemic, remote video depositions and trial testimony very quickly went from rare to routine. Remote testimony, for the most part, is viewed as a convenience to both witnesses and attorneys, and parties and witnesses frequently submit to remote testimony voluntarily.
The Rules plainly permit subpoenas of witnesses for depositions within their home districts. But what about a trial where the witness is beyond the subpoena power of the court? Can this witness be compelled to testify at trial remotely? District courts have grappled with this issue for years, reaching differing results. With In re: Kirkland, the Ninth Circuit became the first Circuit Court of Appeals to address the issue, holding that the court lacked the authority to order remote trial testimony of a witness outside of its subpoena power.[1]
The Rules at Play
The dispute lies at the intersection of Federal Rules of Civil Procedure 45 and 43.
Rule 45(c) contains the familiar territorial limits for commanding a person “to attend a trial, hearing, or deposition,” providing:
(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial expense.[2]
Prior to 2013, courts were split regarding subpoenaing parties and their officers, with some courts concluding that they had the authority to compel party officers to a trial, even if beyond 100 miles from the courthouse.[3] That was resolved by the 2013 Amendments to Rule 45, which made clear that a party or party officer can only be subpoenaed if within 100 miles or within the state where the person “resides, is employed, or regularly transacts business in person.” Unable to now order companies’ officers to trial, litigants looked to remote testimony.
This implicates Rule 43. Rule 43(a) permits “testimony in open court by contemporaneous transmission from a different location” “[f]or good cause in compelling circumstances and with appropriate safeguards.”[4]
Of course, Rule 43(a) was written before Zoom became ubiquitous. The Advisory Committee’s discussion at the time Rule 43(a) was written might seem quaint today—or perhaps prescient. The Advisory Committee Minutes at the time the addition to the rule was under consideration in the early 1990s noted that “[t]his provision provoked substantial discussion and uncertainty. Doubts were expressed about moving toward ‘the courtroom of the future’ in which everyone participates by remote electronic means from many scattered locations.”[5] Concerns were also expressed that “this device can appeal only to those anxious to be ‘trendy,’ ‘with it,’ and adept with ‘all the new toys’” and there could be improper coaching of a remote witness.[6] Ultimately, these concerns were deemed addressed by the “good cause in compelling circumstances” and safeguard provisions, and the contemporaneous transmission provision narrowly survived the committee by a vote of 7 to 5.[7]
Rule 43 and Rule 45 make no explicit reference to each other. The only reference to the relationship between the two is in the Advisory Committee notes to Rule 45, which state that “When an order under Rule 43(a) authorizes testimony from a remote location, the witness can be commanded to testify from any place described in Rule 45(c)(1).”[8]
Differing District Court Decisions
District courts addressing this issue have been far from uniform, generally taking one of three approaches.
The first group of courts have held that Rule 43(a) cannot be used to circumvent the requirements of Rule 45(c).[9]
The second group of courts have held that Rule 45(c) does not prohibit a court from compelling a witness to testify from a remote location near his or her residence, with little or no discussion of good cause or compelling circumstances.[10]
A third group of courts have held that a court can compel remote testimony within 100 miles of the witness’s residence consistent with Rule 45(c), but only if good cause in compelling circumstances is shown under Rule 43(a).[11]
The Kirkland Decision
Recognizing the unsettled state of the law on this issue, the Ninth Circuit took up the question via the “extraordinary” remedy of mandamus relief in In re: Kirkland.
In Kirkland, the United States Bankruptcy Court for the Central District of California issued trial subpoenas requiring the Kirklands to testify remotely by contemporaneous video transmission from their home in the U.S. Virgin Islands. The Kirklands moved to quash. The Bankruptcy Court denied their motion, concluding that even though the Kirklands’ home was more than 100 miles from the courtroom, the “place of compliance” was not the courtroom in California, but rather the Kirklands’ home in the Virgin Islands.
The Ninth Circuit disagreed.
At the outset, the Ninth Circuit noted the different purposes of Rules 43 and Rule 45—with Rule 43 governing how testimony may be presented and Rule 45 governing the limits on the court’s authority to require a witness to testify at trial. As the court stated, “Rule 45(c) governs the court’s power to require a witness to testify at trial, and Rule 43(a) governs the mechanics of how trial testimony is presented. And logically, determining the limits of the court’s power to compel testimony precedes any determination about the mechanics of how such testimony is presented.”[12]
Despite recognizing the “intuitive appeal” of the argument, the Ninth Circuit roundly rejected the trustee’s argument for remote subpoenas for several reasons.
First, the Bankruptcy Court’s interpretation would render superfluous Rule 45(d)(3)(A)(ii), which requires that courts must “quash or modify” subpoenas exceeding Rule 45(c)’s “geographical limits.” Such an interpretation violates the basic rules of statutory interpretation.
Second, the Bankruptcy Court’s interpretation contradicts the plain language of Rule 45(c) that subpoenas are for commanding a witness to “attend a trial.” A “trial,” the Ninth Circuit reasoned, “is a specific event that occurs in a specific place: where the court is located.”[13] The “trial” itself is not being transported to wherever an Internet connection may take it, and there is nothing in the text of the Rules to indicate otherwise.
Third, if the Bankruptcy Court’s interpretation were correct, then there would be no reason for the Rule to ever consider a “long-distance witness” “unavailable.” Indeed, in this very case, the Bankruptcy Court held that the Kirklands’ deposition transcripts were inadmissible because even though the Kirklands were “unavailable” under Federal Rule of Evidence 804(a)(5), their unavailability had been “engineered” for “purely strategic purposes.”[14]
The Ninth Circuit did not ignore the realities of post-pandemic life and technology: “While technology and the COVID-19 pandemic have changed expectations about how legal proceedings can (and perhaps should) be conducted, the rules defining the federal subpoena power have not materially changed.”[15] The text of the rules prevailed, and the Ninth Circuit issued a writ of mandamus ordering the Bankruptcy Court to quash the Kirklands’ trial subpoena.
Conclusion
The issue is now decided in the Ninth Circuit: A court may not order remote trial testimony outside of its subpoena power. Convenience and changing technology simply do not trump the Rules. The Kirkland decision shuts down a favored avenue for plaintiffs seeking to order company witnesses to testify at trial remotely where they are outside the subpoena power. This is not the type of issue that frequently reaches the federal appellate courts, but district courts that have taken different approaches may reconsider.
And even if in a jurisdiction that does not follow Kirkland, it is also important to remember that subpoena authority is not the end of the Rule 43 inquiry. “Good cause” and “compelling circumstances” remain part of Rule 43, and it cannot be that good cause exists in every case—the exception would swallow the rule. The Rules express a preference for live, in-person testimony,[16] and the same concerns stated in the Advisory Committee meeting about witness coaching are still present in the Zoom age. Good cause may not exist for remote video testimony, for example, if recorded deposition testimony is available[17] or if the absence was foreseeable.[18] Thus, even if the witness will appear voluntarily or is within the court’s subpoena power, do not simply assume that “good cause and compelling circumstances” for remote testimony exist. As the Ninth Circuit put it, “[w]e are bound by the text of the rules.”[19]
[1] In re Kirkland, 75 F.4th 1030 (9th Cir. 2023).
[2][2] See Fed. R. Civ. P. 45(c).
[3] See Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment (“Because Rule 45(c) directs that compliance may be commanded only as it provides, these amendments resolve a split in interpreting Rule 45’s provisions for subpoenaing parties and party officers. Compare In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans), with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008) (holding that Rule 45 did not require attendance of plaintiffs at trial in New Orleans when they would have to travel more than 100 miles from outside the state).”).
[4] See Fed. R. Civ. P. 43(a).
[5] Draft Minutes, Civil Rules Advisory Committee (Oct. 20 and 21, 1994).
[6] Id.
[7] Id.
[8] Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment.
[9] See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., Case No. 17-md-2785-DDC-TJJ, 2021 WL 2822535, at *4 (D. Kan. July 7, 2021) (“If the rule functioned as plaintiffs propose, the court would obviate the limitations that Rule 45 places on a court’s subpoena power.”); Broumand v. Joseph, No. 20-cv-9137 (JSR), 2021 WL 771387, at *10 (S.D.N.Y. Feb. 27, 2021) (“[A]ny other reading would render Rule 45(c) geographical limitations a nullity and bestow upon any arbitrator sitting anywhere in the country the unbounded power to compel remote testimony from any person residing anywhere in the country”).
[10] See, e.g., United States v. $110,000 in U.S. Currency, Case No. 21 C 981, 2021 WL 2376019, at *3 (N.D. Ill. June 10, 2021); In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2017 WL 2311719, at *4 (E.D. La. May 26, 2017).
[11] See, e.g., In re: 3M Combat Arms Earplug Prods. Liab. Litig., Case No. 3:19-md-2885, 2021 WL 2605957, at *3–4 (N.D. Fla. May 28, 2021); In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig., MDL Docket No. 3:11– MD–2244–K, 2016 WL 9776572, at *1–2 (N.D. Tex. Sept. 20, 2016).
[12] Kirkland, 75 F. 4th at 1043.
[13] Id. at 1045.
[14] See id. at 1046 (citing Fed. R. Civ. P. 32(a)(4)(B) (a witness’s deposition transcript may not be used at trial if “the witness’s absence was procured by the party offering the deposition”); Fed. R. Evid. 804(a) (a prior sworn statement of an unavailable witness is not admissible “if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying”)).
[15] Id. at 1046.
[16] See, e.g., Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment (“Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses.”).
[17] See, e.g., Union Pac. R.R. Co. v. Beemac Trucking, LLC, 2013 WL 6795031, at *1 (D. Neb. Dec. 20 2013) (rejecting motion to compel witness’s live video testimony and holding that “[videotaped] deposition testimony is sufficient for trial”); In re Prograf Antitrust Litig., 2014 WL 7641156, at *5 (D. Mass. Dec. 23, 2014) (denying plaintiffs’ motion to compel live trial testimony of defense witnesses where plaintiffs could introduce the testimony “through their deposition videos”).
[18] See Tharpe v. Lawidjaja, 2013 WL 5939702, at *3 (W.D. Va. Nov. 5, 2013); see also Rodriguez v. SGLC, Inc., No. 2:08-cv-01971, 2012 WL 3704922, at *2 (E.D. Cal. Aug. 24, 2012) (denying plaintiffs’ motion because “Plaintiffs have known for years that the costs of international travel can be prohibitive, just as they have known that visas may prove difficult to come by”); Sille v. Parball, 2011 WL 2680560, at *1 (D. Nev. Jul. 8, 2011) (denying plaintiff’s motion because “There is nothing unexpected concerning the ability of Plaintiff’s witnesses to attend. Norway and New York have remained the same distance from Las Vegas, Nevada during the entire pendency of this action.”); Niemeyer v. Ford Motor Co., 2012 WL 5199145, at *1 (D. Nev. Oct. 18, 2012) (denying motion for video testimony even though physician was not deposed, finding the “quandary” was a foreseeable one of plaintiff’s “own making.”).
[19] Kirkland, 75 F. 4th at 1046.
Finis
