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100-Mile Limit on Trial Subpoena Applies to Remote Testimony

Posted by James Juo | Aug 03, 2023 | 0 Comments

Federal Rule of Civil Procedure 45(c) defines the geographical scope of a federal court's subpoena power to compel a witness to testify at a trial or other proceeding.

A person can be commanded to attend trial “within 100 miles of where the person resides, is employed, or regularly transacts business in person,” Fed. R. Civ. P. 45(c)(1)(A); or if that person resides in the state where the trial is to be held if that person would not incur substantial expense, Fed. R. Civ. P. 45(c)(1)(B).

If a trial subpoena exceeds these geographical limitations, the district court “must quash or modify” the subpoena under Rule 45(d)(3)(A)(ii).

Remote Testimony

In a case of first impression, the Ninth Circuit has determined that “Federal Rule of Civil Procedure 45(c)'s 100-mile limitation applies when a witness is permitted to testify by contemporaneous video transmission.” In re John C. Kirkland, No. 22-70092 (9th Cir. July 27, 2023).

The case involved John and Poshow Kirkland, a married couple who previously lived in California, and who had sought to quash trial subpoenas to testify via video from their new home in the Virgin Islands.

The trial court had relied on Federal Rule of Civil Procedure 43, titled “Taking Testimony,” permits courts to allow remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.”

But, on its face, Rule 43(a) does not address the scope of a court's power to compel a witness to testify or reveal any overlap with Rule 45. Rather, “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.”

The fact remains that all witnesses—even those appearing remotely—must be compelled to appear, and a court can only compel witnesses who are within the scope of its subpoena power. Rule 43 does not give courts broader power to compel remote testimony; it gives courts discretion to allow a witness otherwise within the scope of its authority to appear remotely if the requirements of Rule 43(a) are satisfied. That is, neither the text of the rules nor the advisory committee's notes establish that the 100-mile limitation is inapplicable to remote testimony or that the “place of compliance” under Rule 45 changes the location of the trial or other proceeding to where the witness is located when a witness is allowed to testify remotely.

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          Before the proliferation of videoconference technology, Rule 45's strict geographical limitation was simple: if a witness was located further from the courthouse than Rule 45 proscribes, the witness could not be compelled to testify at trial. See, e.g., Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1019 (9th Cir. 2004) (recognizing that a witness who lived more than 100 miles from the court was “outside of the court's subpoena power” and therefore “unavailable” under Federal Rule of Civil Procedure 32 and Federal Rule of Evidence 804); McGill v. Duckworth, 944 F.2d 344, 353–54 (7th Cir. 1991) (noting that the court's subpoena power to compel trial witnesses is “limited to its district and a 100-mile radius around the courthouse,” and that a court does not have any “‘inherent powers' to compel the attendance of a witness who is outside the court's subpoena power”), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994); In re Guthrie, 733 F.2d 634, 637 (4th Cir. 1984) (“[A] nonparty witness outside the state in which the district court sits, and not within the 100-mile bulge, may not be compelled to attend a hearing or trial, and the only remedy available to litigants, if the witness will not attend voluntarily, is to take his deposition . . . .”); Jaynes v. Jaynes, 496 F.2d 9, 10 (2nd Cir. 1974) (noting that district courts have the power only to subpoena witnesses in civil cases who “reside within the district or without the district but within 100 miles of the place of hearing or trial”). 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. See Amchem Prods. v. Windsor, 521 U.S. 591, 620 (1997) (“The text of a rule . . . limits judicial inventiveness.”). 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.” Swedberg v. Marotzke, 339 F.3d 1139, 1145 (9th Cir. 2003); see also In re Cavanaugh, 306 F.3d 726, 731–32 (9th Cir. 2002) (“Congress enacts statutes, not purposes, and courts may not depart from the statutory text because they believe some other arrangement would better serve the legislative goals.”).

Addressing this interplay of two provisions of the Federal Rules of Civil Procedure, the Ninth Circuit held that remote appearances are not exempted from the geographical limitations on the power to compel a witness to appear and testify at trial.

Thomas P. Howard, LLC is experienced in litigation nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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