Ninth Circuit’s plain text ruling on Rule 45 won’t be the last word

Before the COVID-19 pandemic, there was not much ambiguity in how to interpret Rule 45's "Place of Compliance" rule, which restricts a federal court's power to compel a witness to testify at a hearing or trial more than 100 miles from the proceeding. But with the proliferation of video-conference capabilities, and parties' and courts' increased reliance on them to conduct routine matters efficiently, some courts have given the requirement a more flexible and practical interpretation fitting our modern times. These courts have recognized there is far less burden on a remote witness when he or she is just a mouse click - not a long drive or flight - away. The Ninth Circuit, however, has recently rebuffed this trend, rigidly enforcing the Rule's physical distance limit.

Enacted nearly a century before the COVID-19 pandemic and proliferation of video conferencing, Rule 45(c) of the Federal Rules of Civil Procedure empowers federal courts to "command a person to attend a trial, hearing, or deposition" that takes place "within 100 miles of where the person resides, is employed, or regularly transacts business in person." Fed. R. Civ. P. 45(c)(1)(A)-(B). The reason for that rule, at the time it was enacted and for many years thereafter, made good sense: It prevents abuse of the subpoena power by protecting witnesses who may be unduly "burdened to perform the duty to travel in order to provide testimony at trial." Advisory Notes, 1991. Accordingly, power to burden and inconvenience witnesses by hailing them to testify in a distant court is appropriately limited to those who reside in relative close proximity to the venue of a given proceeding.

But the increased use of - and reliance on - remote appearances injects new ambiguity in Rule 45 - where exactly is attendance taking place - and calls into question the very purpose of the 100-miles rule. For example, if a trial occurs at a courthouse in Los Angeles and a witness can testify remotely from her home in Washington, D.C., the distance between the "place of compliance" and the witness could be from the witness' home, meaning the witness is thousands of miles away. Or the distance could be measured from the witness' home telephone or video monitor - where they are providing testimony - meaning they are effectively zero miles away.

So what is the appropriate starting point under Rule 45 today - is it still the physical distance between the court and the witness? And does any physical distance calculation really matter anymore given that technology has effectively eliminated traditional witness burdens of time and expense to attend a proceeding? For some district courts, the answers to both questions seem to be no. These courts have given the Rule a more flexible interpretation, compelling remote testimony from distant witnesses. See, e.g., U.S. v. $110,000 in U.S. Currency, 2021 WL 2376019 (N.D. Ill. June 10, 2021); International Seaway Trading Corp. v. Target Corp., 2021 WL 672990 (D. Minn. Feb. 22, 2021). These rulings are based on the view that technology has eliminated the historic "abuses" the geographic limitation was designed to prevent, and that, as such, such antiquated concerns should not override the judiciary's truth-seeking function.

The Ninth Circuit, however, has yet to sign onto this view, holding in July that the location of the court is still where the calculation begins for trials and proceedings. See In re Kirkland, --- F.4th ---, 2023 WL 4777937 (9th Cir. 2023). In Kirkland, the U.S. Bankruptcy Court for the Central District of California issued subpoenas to compel the trial testimony from the Kirklands, who resided in the U.S. Virgin Islands. Id. at *2. In response, the Kirklands moved to quash the subpoenas because they resided more than 100 miles from the court. Id. at *3. After the bankruptcy court denied their motions, the Kirklands petitioned the Ninth Circuit for writ of mandamus. Id. at *3-4.

The Ninth Circuit granted the petition and sided with the Kirklands. At the outset, the Ninth Circuit recognized that, for "in-person attendance" at a trial or hearing, Rule 45 is straightforward: "a person cannot be required to attend a trial or hearing that is located more than 100 miles from their residence, place of employment, or where they regularly conduct in-person business." Id. at *7. And that limitation still holds even "when a witness is allowed to testify remotely." Id. at *8.

In reaching that conclusion, the Ninth Circuit relied on Rule 45's plain text - which does not expressly address or distinguish remote proceedings - and its advisory committee notes. While the Ninth Circuit acknowledged that "technology and the COVID-19 pandemic have changed expectations about how legal proceedings can (and perhaps should) be conducted," it viewed the Rule as inflexible and that any changes to the rule should properly be addressed by "the Rules Committee and not a court." Id. at *9.

Kirkland is doubtfully the last word on this issue. Given the differing views among our federal courts, and the significant technological changes testing the historic purpose of the geographic limitation, the Rules Committee may take up the Ninth Circuit's invitation to amend the Rule. But we should not expect any sudden changes, as the Rule amendment process generally takes years (and Rule 45 is not on the Committee's current agenda). See (Pending Rules and Forms Amendments United States Courts (uscourts.gov)). In the meantime, parties need to carefully to consider the prospect of remote attendance when seeking testimony from a distant witness, or moving to quash such testimony.