Federal Rule of Civil Procedure 45(c) is straightforward: a district court has the power to compel a witness to testify at trial if the trial takes place
- within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
- 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.
The purpose behind Rule 45(c) is also clear – to protect witnesses from the burden of extensive travel. But the Federal Rules are also clear that absent compelling circumstances, trial testimony must be given in person:
At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide 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.
With the advent of sophisticated technology, pushed forward by the Covid pandemic, that has made testifying remotely a regular, and non-problematic, occurrence, what does that mean for Rule 45(c)? The Ninth Circuit recently became the first appellate court to address the question. And the answer was, nothing. Rule 45(c) remains the law and remote trial testimony does not nullify the geographical limits of the federal court’s subpoena power.
The case, In re Kirkland, 2023 WL 4777937 (9th Cir. Jul. 27, 2023), has nothing to do with prescription drugs or medical devices, but the procedural issue is one that impacts all litigation. The witnesses, one a party and one not, previously resided and worked in California but had since relocated to the U.S. Virgin Islands. They had both testified in a prior related case. In the current case, one party sought to introduce that prior testimony arguing the witnesses were unavailable making the prior testimony admissible hearsay. The bankruptcy court concluded the “unavailability” had been engineered for strategic purposes and that the prior testimony was insufficient to address certain issues. Id. at *3. The bankruptcy court’s in limine ruling went on to detail “its positive experience with witnesses appearing remotely at proceedings conducted during the COVID-19 pandemic.” Id. at *4. The court concluded that remote testimony via videoconference “is an adequate substitute for in-person testimony,” therefore, “good cause and compelling circumstances warranted ordering the Kirklands to testify remotely.” Id.
The witnesses petitioned the Ninth Circuit for a writ of mandamus directing the bankruptcy court to quash the trial subpoenas. The question presented was whether Rule 45(c)’s 100-mile limitation applies when a witness is permitted to testify via contemporaneous video transmission. Most of the arguments on the con side were based on practicalities. If Rule 45(c)’s purpose is to avoid burdening witnesses with the cost and time of travel, allowing them to appear remotely from a location within 100 miles of their home serves the same purpose. And, the “litigation landscape has permanently shifted towards the greater use of videoconference.” Id. at *5. But courts are required to interpret and apply the rules as written.
It was undisputed that the trial court could not compel the witnesses to testify in person at trial in California because they no longer live, work, or regularly conduct in person business within 100 miles of the courthouse. Id. at *7. Rather the trial court concluded that when compelling remote testimony, the “place of compliance” under Rule 45(c) moved from the courthouse to the location of the witnesses. The justification for that conclusion was an alleged “interplay” between Rules 43 and 45 set forth in the advisory notes, but the Ninth Circuit found that was reading far too much into the notes. First, the notes do not change the location of the proceedings to the location of the witness. Id. Second, the notes to Rule 43 state: “The importance of presenting live testimony in court cannot be forgotten.” Id. at *8. Interpreting the rules the way the trial court did “would greatly undermine” the “strong preference for in-person testimony.” Id.
Rather, the appropriate way to read Rules 43 and 45 together is
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 to be presented.
Id. at *7. Stated another way, a court can only compel witnesses who within the subpoena power of the court, which is limited geographically. Rule 43 does not expand that power, but rather “it gives court discretion to allow a witness otherwise within the scope of its authority to appear remotely if the requirements of Rule 43(a) are satisfied.” Id. at *8.
Allowing courts to compel remote testimony by witnesses outside their subpoena power would essentially render Rule 45(d)(3)(A)(ii) meaningless. That rule requires courts quash subpoenas that reach “beyond the geographical limits specified in Rule 45(c).” Id. Further, it would ignore the plain language of Rule 45(c) that trial subpoenas “command a witness to attend a trial.” Id. And trials occur in the court. Also, if the place of compliance for a trial witness could change to the location of the witness, it would nullify the provisions in the rules for witness unavailability and how evidence is presented from unavailable witnesses.
There is no denying that technology has changed litigation, including the way we participate in court conferences and the way we take depositions. The advances in videoconferencing can be used to alleviate the burdens of travel that are often costly and can lead to delay. But, courts “generally seek[ ] to discern and apply the ordinary meaning of [a text] at the time of its adoption.” Id. at *9. So, videoconferencing technology may be the wave of the future, but changes to Rule 45 are “for the Rules Committee and not for [a] court.” Id. Because the trial court misinterpreted the law and this is an important issue of first impression, the Ninth Circuit granted the mandamus relief and ordered the trial court to quash the subpoenas.