The Ninth Circuit has become the first federal appeals court to rule that its trial courts can’t expand their subpoena power under the Federal Rules of Civil Procedure to require a witness beyond the trial court’s 100-mile radius to testify remotely.
The July 27 decision is an important issue of first impression with respect to remote trial testimony, and provides a cautionary reminder to litigators that despite the comforts of remote work and the advancements of far-reaching technologies, the federal rules haven’t (yet) changed with the times.
Consequently, if there’s an unwilling witness beyond a court’s reach, efforts must be taken in advance of trial and preferably before the close of discovery, to secure the out-of-state witness’s videotaped trial testimony so that it can be played at trial in lieu of live testimony.
The Rules as They Stand
FRCP 45(c) of the Federal Rules of Civil Procedure (FRCP) provides that a trial court can issue a subpoena to require a witness to attend a trial within 100 miles of where the person lives or works. Put another way, the trial court can’t command a witness who lives or works more than 100 miles from the trial court to appear at trial.
In the wake of the pandemic, many more district courts were asked to subpoena witnesses to testify remotely, pursuant to FRCP 43(a), despite the limitations of the court’s subpoena power under FRCP 45. Proponents of this interpretation, which predated the pandemic, argued that FRCP 43(a) permits the courts to compel the remote trial testimony of witnesses for good cause and compelling circumstances.
Courts Divided
The federal rules and courts have a strong and long-standing preference for live testimony in open court. Traditionally, if the witness is more than 100 miles from the place of trial, parties often have to rely on deposition testimony, in lieu of live trial testimony, pursuant to FRCP 32.
However, some courts, like the district courts in Florida, Illinois, Louisiana,and West Virginia, have interpreted FRCP 43 and 45 liberally, finding that the rules allow them to command witnesses to appear at trial remotely as long as they don’t require the witness to travel more than 100 miles.
These courts reasoned the 100-mile limitation set forth in FRCP 45 applies to the place of compliance, not the location of the trial court from which the subpoena is issued. So, as long as the witness can comply with the subpoena within 100 miles of where they are (and not the court), then the goals of FRCP 43 and 45 are satisfied.
Other district courts, however, have taken a strict approach to interpreting the language in FRCP 45. District Courts in New York, Washington, Texas, Kansas, and Wyoming have ruled that parties can’t evade the geographic limitations of FRCP 45(c) by utilizing the contemporaneous transmission of live testimony that’s permitted under FRCP 43(a).
The ability to testify remotely doesn’t move the trial, for purposes of FRCP 45, to the physical location of the testifying witness, the courts said. The party must first be able to compel the witness through the subpoena power of the court, which is restricted to 100 miles, and then ask the court’s permission under FRCP 43(a) to allow remote trial testimony, with a showing of good cause and compelling circumstances, the courts said.
Despite a divide among the district courts, none of the federal courts of appeal had reached a decision on this issue until last week.
Stuck in the Past, With Sights on the Future
Granting mandamus relief, the Ninth Circuit ordered the bankruptcy court to quash the previously issued trial subpoenas, finding them to be outside the court’s subpoena power under FRCP 45.
In doing so, the court acknowledged that “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.”
Though the court determined that it was bound to the text of the rules, it appeared open to the possibility that in the future, the rules that dictate how legal proceedings are conducted may evolve with the times.
Until then, parties must be thoughtful in their trial preparations, and secure trial testimony of out-of-state witnesses either voluntarily or through videotaped depositions.
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