Testimony of far away witnesses is possible, but not compulsory

Witnesses who cannot be compelled to testify in federal trial courts because they are outside the court's subpoena powers are not suddenly fair game because of the common use of videoconferencing or Zoom technology. That is the ruling of a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit, which recently issued rare writ relief in a civil case to two witnesses subpoenaed to testify in Los Angeles, more than 3,400 miles from their home in the U.S. Virgin Islands.

In a published opinion, the Ninth Circuit clarified an issue that has divided federal trial courts across the country.

The Confusion stemmed from the interplay between Federal Rule of Civil Procedure 45(c), which sets two jurisdictional tests that limit when a court can force someone to attend trial pursuant to a subpoena, and Federal Rule of Civil Procedure 43(a), which permits remote testimony.

Under Rule 45(c), a court can compel a witness, whether a party or nonparty, to appear within 100 miles of where the witness lives, works, or regularly does in-person business. Alternatively, when the witness is a party, or if the appearance would not impose a substantial expense, a court can compel a witness to appear in the state where the witness lives, works, or regularly does in-person business.

Pre-COVID, these two tests were strictly enforced, relatively straightforward, and easy to apply. Congress had previously amended Rule 45 to eliminate court-adopted exceptions and ambiguity as to how the two geographic limits were to be applied to parties. See Fed. R. Civ. P. 45 advisory committee's note to 2013 amendment. But the growing use of remote testimony in the post-COVID landscape under Rule 43(a) complicated Rule 45's geographic limits, at least in the eyes of some judges. Rule 43(a) allows witnesses to testify by "contemporaneous transmission from a different location" - in other words, through a system like Zoom - assuming "good cause and compelling circumstances" exist.

COVID made virtual testimony an attractive option for litigants and courts alike. In an era of masks, social distancing, and lockdowns, courts turned to platforms like Zoom to continue conducting trials and evidentiary hearings. The value of Rule 45(c)'s geographic limitations on testimony became less obvious when witnesses could testify remotely from their own homes. In the face of all this, some courts, when interpreting Rules 43(a) and 45(c), stuck firm to the traditional 100-mile and statewide geographic limits. See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-2785-DDC-TJJ, 2021 WL 2822535, at *4 (D. Kan. July 7, 2021). But others said Rule 43(a) allowed them to compel remote testimony from somewhere within 100 miles of the witness's residence, assuming there was good cause. See, e.g., In re: 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-md-2885, 2021 WL 2605957, at *3-4 (N.D. Fla. May 28, 2021). And even others said Rule 43(a) automatically satisfied the geographic limits because the witness would not need to travel at all. See, e.g., United States v. $110,000 in U.S. Currency, No. 21 C 981, 2021 WL 2376019, at *3 (N.D. Ill. June 10, 2021).

Kirkland v. United States Bankruptcy Court (In re Kirkland)[5] has quieted this debate, at least within the Ninth Circuit, by adopting the first of these interpretations. No. 22-70092, 2023 WL 4777937 (9th Cir. July 27, 2023).

"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. We are bound by the text of the rules," Judge Danielle J. Forrest wrote in her published opinion for the Ninth Circuit. Id. at *9.

Background

Kirkland concerned an adversary proceeding pending in bankruptcy court in the Central District of California. That court ordered two witnesses, one a party and the other a nonparty, who lived in the U.S. Virgin Islands to testify by Zoom at an upcoming trial.

The witnesses moved to quash the trial subpoenas. They argued that the subpoenas violated the geographical limitations in Rule 45(c). By traditional standards, the witnesses resided far more than 100 miles from the Los Angeles bankruptcy court and unquestionably could not be compelled to testify there in person.

Even though the witnesses lived thousands of miles away and did not work or conduct regular business in California, the bankruptcy court denied the motion. It cited Rule 43(a) and said the good cause and compelling circumstances for the witnesses to testify virtually existed because the court lacked the power to compel them to travel and because, in the bankruptcy court's eyes, the animating purpose behind Rule 45(c) was "to protect witnesses from the burden of extensive travel." Id. at *3.

The bankruptcy court then denied appellate certification of this ruling, so the witnesses petitioned the Ninth Circuit for a writ of mandamus directing the bankruptcy court to quash the trial subpoenas.

Published guidance

The Ninth Circuit issued a writ in an opinion that emphasized the plain meaning of the Federal Rules of Civil Procedure's text at the time it was adopted. On its own, the text and history of Rule 45(c) clearly prevented the lower court from subpoenaing the witnesses, Judge Forrest explained. The bankruptcy court was wrong to conclude that Rule 43(a) changed the "place of compliance" under Rule 45(c) from the courthouse to the witness's location because Rule 43(a) does not change the scope of the court's subpoena power to compel testimony from a witness not voluntarily appearing at trial. Instead, it provides guidance on how a witness may testify, assuming Rule 45(c)'s geographic limits are satisfied.

The Ninth Circuit also explained that interpreting the rules as the lower court did would render meaningless the requirement that courts "must" quash subpoenas that don't comply with the geographical limitations in Rule 45(c). Fed. R. Civ. P. 45(d)(3)(A)(ii). The plain text of the rule lets a court "command a person to attend a trial." Changing "place of compliance" to mean the witness's location would mean that long-distance witnesses would never be "unavailable" as anticipated by the federal rules.

The opinion is helpful to courts and attorneys because it provides a functional framework for dealing with physically distant witnesses, but it also provides insight into broader litigation issues raised by this case and others like it.

First, the Ninth Circuit advised that the lower court's interpretation of Rule 43(a) did not appreciate the purpose of a trial beyond simply obtaining evidence. The Federal Rules of Civil Procedure express a preference for live, in-person trial testimony because of its psychological impact. "The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling," the court wrote, quoting the advisory committee notes to Rule 43. Kirkland, 2023 WL 4777937, at *8.

Second, the Ninth Circuit admonished judges that it is not the prerogative of the courts to adapt the Federal Rules of Civil Procedure to their courtrooms as they find convenient. "Notwithstanding the bankruptcy court's positive experiences with videoconferencing technology, any changes to Rule 45, is one 'for the Rules Committee and not for [a] court.'" Id. at *9 (citation omitted).

Adopting an interpretation of the rule as used by the bankruptcy court would have had a profound impact on the subpoena powers of federal courts. A trial subpoena compels testimony under a threat of contempt. Fed. R. Civ. P. 45(g). Unlike criminal cases, where Federal Rule of Criminal Procedure 17 permits nationwide service of subpoenas, the federal subpoena power in civil cases has always had a limited geographical scope. The bankruptcy court's rule would have permitted nationwide (indeed worldwide) service of process for trial subpoenas subjecting virtually anyone to the contempt powers of the issuing court. As the Ninth Circuit rightly recognized, such a vast expansion of the subpoena powers should be done through the ordinary process of amending the Federal Rules of Civil Procedure, not by judicial fiat.

Handling these circumstances in the future

The Ninth Circuit's opinion doesn't mean geographically distant witnesses are completely off limits for purposes of providing testimony at trial. Instead, the Kirkland opinion clarifies that litigants must follow the framework established by the Federal Rules of Civil Procedure and the Federal Rules of Evidence to build their cases.

Under Kirkland, litigants can travel and depose distant witnesses within 100 miles of where they live or work, as anticipated by Rule 45(c). Then, litigants can introduce these depositions at trial under Federal Rule of Civil Procedure 32(a)(4)(B) and Federal Rule of Evidence 804 as the statements of "unavailable" witnesses. In fact, the committee notes to Rule 43 anticipate these steps: "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." Fed. R. Civ. P. 43 advisory committee's note to 1996 amendment. Moreover, it is common these days for depositions to be videotaped, and those videotaped depositions can be used at trial. Thus, the trier of fact can still have the opportunity to view the witness and their demeanor in a manner similar to viewing live testimony by Zoom.