Horvitz & Levy successfully petitioned the Ninth Circuit for a writ of mandamus, obtaining reversal of a bankruptcy court’s decision compelling our clients’ remote testimony.
John and Poshow (Ann) Kirkland were defendants in an adversary proceeding pending in bankruptcy court for the Central District of California. In essence, John made a secured loan to a former client (EPD), which later had an involuntary bankruptcy filed against it. The adversary proceeding filed by the bankruptcy trustee sought, among other things, to invalidate the loan and to declare the claim equitably subordinated to all other claims in the bankruptcy estate.
The bankruptcy court ordered both Kirklands to testify at trial by Zoom at an upcoming trial against Ann in the adversary proceeding. The Kirklands moved to quash the trial subpoenas because the subpoenas violated the geographical limitations set forth in Federal Rule of Civil Procedure 45(c)(1). The bankruptcy court denied the motion on the grounds that, under Rule 43(a), good cause and compelling circumstances warranted ordering our clients’ remote testimony. Horvitz & Levy then petitioned the Ninth Circuit for a writ of mandamus directing the bankruptcy court to quash the trial subpoenas. In a published opinion on an issue of first impression, the Ninth Circuit agreed with our position and directed the bankruptcy court to quash the subpoenas. The court concluded that despite changes in technology and professional norms, the subpoena power in federal courts has not changed and does not except remote appearances from the geographical limitations on the power to compel a witness to appear and testify at trial.