The Ninth Circuit used a bankruptcy case to grant a writ of mandamus and quash a subpoena that would have compelled a witness to testify at trial via contemporaneous video transmission from the witness’s home, more than 100 miles from the location of the trial.
In short, the Ninth Circuit won’t permit a trial court to use Federal Rule 43(a) to subvert the 100-mile limitation in Federal Rule 45(c)(1). In other words, a subpoena cannot compel a witness to appear and testify at trial via Zoom from a location more than 100 miles from the courthouse.
In her July 27 opinion, Circuit Judge Danielle J. Forrest said it was a “novel issue” that pitted two Federal Rules against one another and has divided the lower courts. The Ninth Circuit, she said, has “not previously addressed the application of Rule 45(c)’s geographical limitations to testimony provided via remote video transmission, which is a question of increasing import given the recent proliferation of such technology in judicial proceedings.”
The Remote Witness
The trustee contended that a potential witness was the source of indispensable testimony to support the trustee’s claim in an adversary proceeding pending in bankruptcy court in Los Angeles. The witness lived in the Virgin Islands and refused to appear voluntarily at trial in Los Angeles.
The bankruptcy court authorized the trustee to serve a trial subpoena by certified mail commanding the witness to testify remotely from the Virgin Islands by video transmission. The bankruptcy court denied the witness’s motion to quash the subpoena.
The witness moved the bankruptcy court to certify an interlocutory appeal to the district court or the circuit court. The bankruptcy court denied the motion. The witness then filed a petition for mandamus, asking the Ninth Circuit to direct the bankruptcy court to quash the subpoena.
Mandamus Granted
Judge Forrest granted the petition in an opinion concluding that the 100-mile limitation in Rule 45(c) controls, not Rule 43(a).
Rule 54(c)(1) provides:
A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person.
The second sentence in Rule 43(a) says:
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.
The trustee contended that “compelling circumstances,” such as the indispensability of the witness, can justify taking testimony “by contemporaneous transmission from a different location,” namely, the witness’s home in the Virgin Islands.
Before deciding whether Rule 43(a) would permit trial testimony remotely, Judge Forrest laid out the requirements for the issuance of a writ of mandamus, which she called an “extraordinary remedy” that only issues in exceptional circumstances amounting to judicial usurpation of power or a clear abuse of discretion. The writ, she said, “can be appropriate to resolve novel and important procedural issues.”
In the Ninth Circuit, five factors govern the issuance of the writ. See Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 1977). The most pertinent for the appeal was the third factor: whether the district court’s order was clearly erroneous. Under the differential standard of clear error, Judge Forrest framed the question as “whether Federal Rule of Civil Procedure 45(c)’s 100-mile limitation applies when a witness is permitted to testify by contemporaneous video transmission.”
Focusing on Rule 45(c)(1)(A), Judge Forrest said that “the plain meaning of this rule is clear: 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.” She said that Bankruptcy Rule 7004(d) incorporates the same limitation.
“Thus,” Judge Forrest said:
we have no difficulty concluding that the [witness] could not be compelled to testify in person at a trial in California. The question here is how Rule 45(c) applies when a person is commanded to testify at trial remotely. [Emphasis in original.]
The trustee contended that Rule 43(a) circumvents the 100-mile limitation when the testimony is remote because remote testimony moves the “place of compliance” to wherever the witness is located.
To decide which rule dominates, Judge Forrest said that “determining the limits of the court’s power to compel testimony precedes any determination about the mechanics of how such testimony is presented.”
Consulting the advisory committee notes and drawing an analogy from Rule 32(a)(4), Judge Forrest concluded “that the [witness] fall[s] outside the bankruptcy court’s subpoena power because it defines witnesses who are ‘more than 100 miles from the place of . . . trial’ as ‘unavailable.’” She found
no indication in this rule that the geographical limitation can be recalibrated under Rule 43(a) to the location of a remote witness rather than the location of trial, nor is there any indication that courts can avoid the consequences of a witness’s unavailability by ordering remote testimony.
Describing how the two rules work together, Judge Forrest held:
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. [Emphasis in original.]
Next, Judge Forrest said that interpreting the “place of compliance” to be the location of the witness “is contrary to Rule 45(c)’s plain language that trial subpoenas command a witness to ‘attend a trial.’” [Emphasis in original.] Indeed, if the place of compliance were the location of the witness,
there would be no reason to consider a long-distance witness “unavailable” or for the rules to provide an alternative means for presenting evidence from long-distance witnesses that are not subject to the court’s subpoena power.
Finding that the witness satisfied the third Bauman factor, Judge Forrest held “that the bankruptcy court ‘misinterpreted the law’ in its construction of Rule 45(c) as applied to witnesses allowed to testify remotely under Rule 43(a).
Proceeding to find that the witness had also satisfied the other Bauman factors, Judge Forrest issued the writ of mandamus, ordering the bankruptcy court to quash the trial subpoena.
The Ninth Circuit used a bankruptcy case to grant a writ of mandamus and quash a subpoena that would have compelled a witness to testify at trial via contemporaneous video transmission from the witness’s home, more than 100 miles from the location of the trial.
In short, the Ninth Circuit won’t permit a trial court to use Federal Rule 43(a) to subvert the 100-mile limitation in Federal Rule 45(c)(1). In other words, a subpoena cannot compel a witness to appear and testify at trial via Zoom from a location more than 100 miles from the courthouse.
In her July 27 opinion, Circuit Judge Danielle J. Forrest said it was a “novel issue” that pitted two Federal Rules against one another and has divided the lower courts. The Ninth Circuit, she said, has “not previously addressed the application of Rule 45(c)’s geographical limitations to testimony provided via remote video transmission, which is a question of increasing import given the recent proliferation of such technology in judicial proceedings.”