Rule 45(c) of the Federal Rules of Civil Procedure protects witnesses from being compelled to travel long distances to testify at trial by placing geographical limits on the court’s subpoena power. Specifically, it limits the “place of compliance” of a trial subpoena to within 100 miles of the witness’s residence or work or within the state where the court is located. While this Rule has long served as a procedural speedbump for litigators, courts enforce it, and noncompliance can carry significant consequences.

In practical terms, Rule 45(c) means that a party generally cannot subpoena a witness from New York to appear at trial in California, even if the witness could appear by video. But in the post-COVID world of remote work and virtual courtrooms, is this requirement becoming outdated?

The Federal Rules Advisory Committee seems to think so. Earlier this year, it proposed amendments to Rule 45(c) that would redefine the “place of compliance” for remote testimony, potentially allowing witnesses to testify from anywhere they can appear on camera (with the court’s permission). The implications could be significant for pharmaceutical and medical device companies that frequently rely on physician and third-party witness testimony to defend against failure to warn claims.

A Not-So-Hypothetical Scenario

Imagine a high-stakes medical device trial in sunny San Diego. The plaintiff, who was treated with a medical device following a medical emergency while vacationing in Puerto Rico, is pursuing a failure-to-warn claim against the manufacturer. Discovery is complete, expert witnesses are en route, and the parties are preparing to begin the trial. But there’s a problem: the surgeon who implanted the medical device is still in San Juan, with no intention of flying across the country to testify.

The obvious solution? Remote testimony by video conference.

It seems practical, and it’s certainly not novel. Courts have allowed video testimony for years, and modern teleconferencing platforms have only made the process more efficient. Live testimony, even via video, is often preferable to a dry deposition transcript. The surgeon can stay where he/she practices, while the jury sees a “live” witness. Everyone wins.

One problem: the pesky language of Rule 45(c) still lags behind the post-COVID technological advances that have made video conferences easier than ever before.

Under the current version of the Rule, a court may compel only a non-party witness to appear for trial within 100 miles of their residence or work, or within the state where the court sits. The fact that testimony is virtual doesn’t change the definition of “place of compliance.”

The Ninth Circuit confirmed this interpretation in In re: Kirkland v. USBC, Los Angeles, 75 F.4th 1030, 1051-52 (9th Cir. 2023):

We have not previously addressed the application of Rule 45(c)’s geographical limitations to testimony provided via remote video transmission, which is a question of increasing import given the recent proliferation of such technology in judicial proceedings. Moreover, we conclude that despite changes in technology and professional norms, the rule governing the court’s subpoena power has not changed and does not except remote appearances from the geographical limitations on the power to compel a witness to appear and testify at trial.

In short, the Ninth Circuit rejected the argument that convenience or technology can override the plain text of Rule 45.

The limitations apply, even on Zoom.

A Rule Ripe for Reform?

Recognizing the disconnect between evolving trial practices and outdated procedural limits, the Federal Rules Advisory Committee issued proposed amendments to Rule 45 in 2025. These proposed amendments would redefine “place of compliance” for remote testimony as the location where the witness physically appears on screen.

For parties and counsel, that location remains the courtroom. But for third-party witnesses, like the treating physician in Puerto Rico, it could be a hospital, an office, or even a living room, as long as that place does not exceed the previously established geographic limits of the Rule.

While this may seem like procedural wordsmithing, it could have significant implications for litigation involving healthcare professionals, especially in product liability and pharmaceutical cases.

Key Impacts on the Healthcare and Life Sciences Industry

Treating physicians are often pivotal witnesses in pharmaceutical and medical device cases. While they are not retained experts, their firsthand observations and clinical decisions can be critical to both plaintiffs and defendants. The proposed changes to Rule 45 may further blur this distinction and lead to new challenges for physicians and healthcare providers.

1. Increased Exposure for Treating Physicians

Courts have historically hesitated to recognize treating physicians as de facto experts, particularly when the testimony veers into analysis or opinion, rather than a recounting of the physician’s diagnosis and treatment of the patient. Even under the amended rule, physicians may still argue they cannot be compelled to provide opinions outside the scope of treatment unless compensated as experts. However, the expanded subpoena power would broaden access to physician testimony and likely increase disputes over what counts as “treatment-based” versus “expert” opinion.

2. Limits on Compelled Testimony Remain

While the amendment expands where testimony can occur, it does not eliminate protections against undue burden. Courts will still evaluate whether a subpoena imposes an unreasonable demand on the witness—particularly when testimony is extensive or touches on proprietary information. Motions to quash and objections based on burden, scope, and relevance will remain critical tools for physicians and their counsel.

3. Nationwide Subpoena Power and Strategic Consequences

With the rule change, parties could serve trial subpoenas on third-party witnesses anywhere in the country, including physicians who may have been previously insulated from out-of-district litigation. It also creates new tactical opportunities for litigators, potentially leading to more aggressive discovery strategies. Increased frequency of trial subpoenas could raise costs and take up an inordinate amount of time from highly busy physicians and their institutions.

4. Cost of Compliance

Complying with subpoenas, whether for testimony or records, is often time-consuming and expensive. Courts sometimes require the issuing party to bear those costs, especially for third-party physicians. Still, the initial burden typically falls on the individual or institution served.

5. Privacy and Confidentiality Risks

Expanded subpoena authority could increase the likelihood of disputes over HIPAA compliance, internal peer review records, and proprietary business information. Protective orders and confidentiality agreements will become even more essential to prevent inadvertent disclosures and limit downstream liability. Organizations should work with counsel early to negotiate protective frameworks and preserve privacy interests.

Preparing for the Rule Change

The public comment period for the proposed amendments runs through February 16, 2026. Industry stakeholders, including trade associations like the AMA, AdvaMed, and PhRMA, have a key opportunity to shape the final rule. Participation in the rulemaking process ensures that the operational realities of physicians and healthcare companies are reflected in the final version.

In the meantime, organizations should begin preparing, including the following:

• Review subpoena response protocols: Ensure staff are trained and that procedures are in place for intake, legal review, HIPAA compliance, and cost management.
• Anticipate increased litigation costs: Consider adjusting litigation budgets to account for expanded subpoena exposure.
• Negotiate protective orders proactively: Protect confidential information early in litigation, particularly in multi-district or nationwide cases.
• Engage in policy advocacy: Monitor developments and consider submitting comments or working with trade associations to ensure industry concerns are represented.

Conclusion

The proposed changes to Rule 45 may appear technical, but they carry real implications for litigation strategy, physician participation, and cost allocation. For healthcare providers and life sciences companies, the rise of remote testimony and expanded subpoena reach underscores the need for both operational readiness and strategic foresight. Remote testimony is here to stay. With the right preparation and thoughtful engagement in the rulemaking process, industry stakeholders can help shape a litigation landscape that balances efficiency, fairness, and respect for professional obligations.

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