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We have become accustomed to doing things remotely these days.  Depositions, court appearances, mediations, conferences, celebrations and family gatherings of all kinds.  The variety of activities that we now do by videoconference pales only by comparison to the speed with which we adapted to this new normal.  We will refrain from opining on whether we are better or worse off compared to a year-and-a-half ago.  We will, however, commiserate with anyone who will listen that our airline loyalty status may never be the same.

Through it all, some things should stay the same—including a court’s power to compel someone to appear in court involuntarily and give testimony under oath before a judge or jury.  Some folks, mainly plaintiffs, would like to use now-familiar videoconferencing technology to extend the subpoena power of federal courts.  We are not so sure, and neither was the district judge who denied requests to allow remote trial testimony in In re Epipen Epinephrine Injection, No. 17-md-2785, 2021 U.S. Dist. LEXIS 125939 (D. Kan. July 7, 2021.

The issue comes down to two Federal Rules of Civil Procedure—Rule 45 governing subpoenas and Rule 43 governing the taking of testimony, including by “contemporaneous transmission from a different location.”  In Epipen, the plaintiffs moved the court to allow trial testimony of the defendant’s former employees by contemporaneous transmission, presumably video conference.

The plaintiffs actually filed two motions.  The first was to allow remote trial testimony by any of the defendants’ current or former employees whom the defendants would not make available in person at trial.  Id. at *29.  Even the most generous reading of the Federal Rules would not permit this sort of blanket ruling, so the court rejected the plaintiffs’ obvious overreach in an informal ruling.  Id. at *29-30.

Which led to the second motion:  The plaintiffs’ motion to allow remote trial testimony from two of the defendants’ former employees, including the former CEO.  Id. at *29-30.  The purported reasoning behind the request was the “tactical” advantage the defendants would gain by refusing to bring their former employees live during the plaintiffs’ case-in-chief.  Id. at *32-33.

Thus Rule 45 and Rule 43 came into play.  Under Rule 45, a court can compel a person to attend a trial “within 100 miles of where the person resides, is employed, or regularly transacts business in person” or “within the state where the person resides etc., 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.”  Id. at *30.  In other words, the court’s trial subpoena power extends 100 miles or, under certain circumstances, to the state borders.

By comparison, Rule 43 governs mode of testimony, which must be taken in open court unless the rules provide otherwise.  Here is the important “otherwise”:

For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

Fed. R. Civ. Proc. 43(a).  Before we get back to the Epipen order, we have a few observations about these rules.  Rule 45 defines the scope of a court’s power to command someone to appear against his or her will:  “A subpoena may command a person to attend trial, hearing, or deposition only as follows.”  The conditions that follow define the geographic scope, as we laid out a few sentences ago.  Rule 43 is different in nature.  It specifies not whether a person must testify, but the method by which that testimony must be taken.  On that score, the rule’s exception for remote testimony is exacting on its face—“for good cause in compelling circumstances.”  We often meet good cause requirements.  But without having surveyed every rule, we can say that we much less often see good cause expressly combined with “in compelling circumstances,” let alone further combined with an additional mandate for “appropriate safeguards.”  The drafters of this rule clearly meant business.

And even after laying out these standards, the rule still says the court “may permit” remote testimony.  The court can take it or leave it, unlike Rule 45, which allows the court to command trial attendance only within certain parameters.

How then did this play out in Epipen?  After a thorough survey of orders from other courts, the district court ruled that Rule 43(a) could not be used to circumvent Rule 45’s geographic limits.  Id. at *33-37.  In so ruling, the district court followed the reasoning of a recent order from the District of Wyoming, which ruled that subpoenas for live video testimony under Rule 43 are subject to the same geographic limits as a trial subpoena under Rule 45.  Id. at *36-37 (citing Black Card LLC v. Visa USA Inc., No. 15-cv-27, 2020 WL 9812009 (D. Wyo. Dec. 2, 2020)).  Sure, Rule 43 permits remote video testimony for good cause in compelling circumstances.  But reading that to trump Rule 45 would “render Rule 45(c)’s geographic limitations a nullity and bestow upon any [court] sitting anywhere in the country the unbounded power to compel remote testimony from any person residing anywhere in the country.”  Id. at *36 (quoting Broumand v. Joseph, No. 20-cv-9137, 2021 WL 771387, at *10 (S.D.N.Y. Feb. 27, 2021)).

The Epipen court ruled further that, even if Rule 45’s limits did not apply, it would still deny the motion under a five-factor test laid out in the Vioxx MDL, which courts can apply in exercising their discretion to allow remote testimony under Rule 43.  Critically (and buried unfortunately in a footnote), the Vioxx MDL judge applied this five-factor test only after concluding first that the witness came within the court’s subpoena power under Rule 45.  Id. at *39 n.3.  The power to compel the testimony had to be established before the method of taking it.

We will not enumerate the five Vioxx factors here; you can read them for yourself in the order.  We will say, however, that factor five is the “flexibility needed to manage a complex multi-district litigation.”  Id. at *39.  In response, the district judge in Epipen stated that “the need for flexibility in this MDL doesn’t permit the court to ignore the requirements of the Federal Rules of Civil Procedure.”  Amen.

In the end, this is a sound outcome.  It would be odd if Rule 43 could lift the very clear limitations on trial subpoenas under Rule 45, even under a discretionary showing of good cause in compelling circumstances.  As a practical matter, any “tactical advantage” realized under Rule 45’s geographic limits could apply either way; if anything, the plaintiff would be in a better position to affect those outcomes by selecting a forum where the defendants’ witnesses are most likely employed.  Finally, the court repeatedly noted the practical reality that the Federal Rules already provide a perfectly good solution—the preservation and presentation of testimony through video depositions.  Good order.