In re Kirkland (2023)
In connection with an adversary proceeding pending in bankruptcy court in the Central District of California, the court ordered two residents of the U.S. Virgin Islands (one a party and one a nonparty) to testify by Zoom at an upcoming trial. The witnesses moved to quash the trial subpoenas, arguing that the subpoenas violated the geographic limitations set forth in Federal Rule of Civil Procedure 45(c)(1). The bankruptcy court denied the motion on the grounds that, under Federal Rule of Civil Procedure 43(a), good cause and compelling circumstances warranted remote testimony. After the bankruptcy court denied appellate certification, the witnesses petitioned the Court of Appeals for a writ of mandamus directing the bankruptcy court to quash the trial subpoenas.
The Court of Appeals issued the writ. Rule 45(c) establishes two circumstances in which a person may be compelled to testify in court. First, a person can be compelled to testify if the person resides, works, or regularly does in-person business in the state where the court sits, so long as the person is a party, a party’s officer, or the testimony would not impose substantial expense. Second, a person may be compelled to testify within 100 miles of where the person lives, works, or regularly does in-person business. If either circumstance does not exist, a court “must” quash a subpoena to testify. Here, the Court of Appeals observed that the witnesses did not live, work, or conduct in-person business in California, where the trial proceedings were taking place. Similarly, they did not live, work, or regularly do in-person business within 100 miles of the bankruptcy court. Though Rule 43 allows for witnesses to give testimony by means of contemporaneous transmission like videoconferencing, the court held, as a matter of first impression, that Rule 43 does not alter the scope of Rule 45. Rather, Rule 43 simply affects the manner in which a witness may give testimony in open court when Rule 45 requirements are met. Because, among other reasons, the bankruptcy court made a clear error of law in refusing to quash the subpoenas and because confusion about the intersection of Rules 43 and 45 existed at the trial court level, the Court of Appeals concluded mandamus relief was appropriate. The court explained that changes in technology and professional norms had not changed the subpoena power of federal courts so as to make remote appearances exempt from the geographical limitations on the power to compel a witness to appear and testify at trial.
Horvitz & Levy LLP represented the petitioning witnesses in the Court of Appeals.
