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Does videoconferencing capability obviate the subpoena power of the court?
RICHARD WEINER
Technology for Lawyers
Published: September 22, 2023
You would think that the courts of the great state of California would have adapted to the new remote office structure that the rest of us are living in. But not so fast.
Federal Rule of Civil Procedure 45(c) states that a district court has the power to compel a witness to physically appear at a trial if that person lives or is regularly within 100 miles of the courthouse, or is an officer of a company in litigation, or could do so without incurring considerable expense.
So now, what if a potential witness doesn’t fall under those restrictions but can just Zoom from the bedroom?
Has the technology that we all now take for granted penetrated, or perhaps even obviated, this clearly out-of-date, clunky rule written in the days of horses and carriages?
Nope. Not according to the 9th Circuit.
I give you the bankruptcy case In re Kirkland, 2023 WL 4777937 (9th Cir. Jul. 27, 2023).
Here we have two witnesses, one a party to the action and one not a party, both of whom had resided within the 100-mile radius contemplated by 45(c).
At the time of the trial, though, both had moved (possibly to avoid testifying per the rule).
The witnesses moved the bankruptcy court to quash the trial subpoenas issued to them, based on Rule 45(d)(3)(A)(ii), which requires a court to quash a subpoena on a witness who is not within the geographic area.
Everyone agreed that the court could not compel the witnesses to appear based, again, upon the rule.
But—could the court compel the witnesses to appear via teleconference/ Zoom?
In other words, would this court pull this particular rule into the 21st century? Could you have a witness in a federal trial appear via TV?
No, it would not.
In reaching this decision, the court combined Rule 45(c) with Rule 43(a), the latter of which specifically emphasizes the importance of witnesses appearing live in court.
The court concluded that, while videoconferencing may be coming, courts would have to wait for an actual rule change for that kind of expansion of subpoena power.
Makes complete sense/ doesn’t make any sense at all.
The future may not be so clear, after all.