Can You Make a Witness Zoom to Trial?
One of the most basic features of Federal civil practice is the “hundred-mile rule.” Appearing in Fed. R. Civ. P. 45, the “hundred-mile rule” states that a witness cannot be subpoenaed to testify at a trial that is more than 100 miles from where the witness “resides, is employed, or regularly transacts business in person.” There are some exceptions, [1] but generally speaking, if a witness lives in California and the trial is in New York, you cannot force them to show up.
The conventional way around this problem is to take a witness’s deposition before trial, videotape it, and then play the videotaped testimony at trial. So long as the deposition is held within 100 miles of where the witness lives or works, the video testimony can be played in a trial anywhere. There are some procedural hoops to jump through – strictly speaking a non-party deposition can only be played if the party offering the testimony first demonstrates that the witness is “unavailable” – but as a general rule, any witness beyond the subpoena power of the court will qualify. [2]
But a deposition video is a poor substitute for live testimony. And one of the lasting impacts of the COVID pandemic has been to acquaint virtually the entire legal profession with the existence of live videoconferencing. Given that many depositions and court hearings already take place via videoconferencing, the obvious question is: Can a party subpoena a witness to testify via Zoom at trial?
At first blush, it certainly seems plausible. While the Federal Rules of Civil Procedure were written in a pre-Zoom age, they do make specific allowances for remote testimony. In particular, Fed. R. Civ. P. 43(a) grants a court the power to “permit testimony in open court by contemporaneous transmission from a different location” so long as there is “good cause in compelling circumstances and with appropriate safeguards.” The 1996 [3] advisory committee notes on the Rule suggest that even audio-only testimony or video technology (substantially worse than what is available today) would be permitted:
No attempt is made to specify the means of transmission that may be used. Audio transmission without video images may be sufficient in some circumstances, particularly as to less important testimony. Video transmission ordinarily should be preferred when the cost is reasonable in relation to the matters in dispute, the means of the parties, and the circumstances that justify transmission. Transmission that merely produces the equivalent of a written statement ordinarily should not be used.
In addition, the same Rule 45 that normally prohibits summoning witnesses more than 100 miles to trial permits the depositions of witnesses anywhere in the United States. Many of those depositions are now taken remotely using video conferencing software like Zoom.
No Court of Appeals has yet ruled on the issue. But at least some courts have held that a party can be subpoenaed to provide remote (video conferencing) testimony at trial. In In re Xarelto (Rivaroxaban) Prod. Liab. Litig., [4] a judge presiding over a trial in New Orleans upheld a subpoena to a witness in New Jersey requiring him to provide video testimony from the federal courthouse in Newark. The opposing party had moved to quash the subpoena, arguing that the 100-mile rule precluding subpoenaing a New Jersey witness to testify – by any means – at a trial in New Orleans. But the court noted that the witness would be testifying from a location well-within 100-miles of his home or business and held that Rule 45 was satisfied. [5]
A similar result was reached in In re: 3M Combat Arms Earplug Prod. Liab. Litig. [6]There, a judge presiding over a trial in Pensacola, Florida upheld trial subpoenas to witnesses in Indiana and Minnesota. After reviewing the arguments concerning Rules 43 and 45, that court specifically wrote:
The Court concludes that a party may use a Rule 45 subpoena to compel remote testimony by a witness from anywhere so long as the place of compliance (where the testimony will be given by the witness and not where the trial will take place) is within the geographic limitations of Rule 45(c). This is because “the 100-mile limitation now found in Rule 45(c) has to do with the place of compliance; not the location of the court from which the subpoena issued. [7]
But while the 3M court claimed that “an overwhelming consensus of federal courts” agreed with its position, that does not accurately describe the state of the caselaw. [8] Numerous other district courts have held that a witness cannot be subpoenaed to testify remotely at trial unless they could be subpoenaed to testify live. For example, in Broumand v. Joseph [9] a judge in New York found that subpoenas for remote video testimony of witnesses in California and Virginia were “unenforceable” under the 100-mile rule. The Broumand court rejected the argument that the witnesses would not have to travel, writing:
[T]he Court concludes that this approach is inconsistent with the text of Rule 45(c), which speaks, not of how far a person would have to travel, but simply the location of the proceeding at which a person would be required to attend. [10]
A similar result was reached in Roundtree v. Chase Bank USA, N.A. [11] There a judge sitting in Seattle quashed subpoenas seeking video trial testimony from a witness in Arizona. Again rejecting the notion that travel distance was an issue, the court claimed that a video link did not “move[] a trial to the physical location of the testifying person” and because of that, the 100-mile rule prohibited the subpoena. [12]
And while acknowledging the substantial divergence in authority, a judge in Kansas City recently quashed several out-of-state trial subpoenas seeking video testimony at trial. In In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig. [13] the court rejected the idea that Rule 43 could allow a court to subpoena any witness to testify for trial (albeit remotely), writing that:
“[S]uch a ruling would conflict with Rule 43’s advisory committee's note, which directs: ‘Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses.” [14]
Whether a Court of Appeals would be persuaded by an advisory committee comment from 1996 on the “superiority” of VHS video tapes to crude video conferencing technology is unclear. But until the issue is taken up by an appeals court, the law is sufficiently undecided as to be essentially up for grabs in any case. There are two implications:
First, an attorney cannot ever count on being able to force remote video testimony at trial. So if a witness is beyond the subpoena power of the court, the only way to guarantee that their testimony will be heard at trial is to obtain that testimony via deposition.
Second, even if a deposition is available, some courts will authorize subpoenas to compel remote trial testimony. Since live testimony is almost always more compelling (and easier for a jury to pay attention to) than a recorded deposition, it is worth at least considering a remote testimony subpoena in any case where a crucial witness is more than 100-mile from the court.
[1] For example, if the witness is a plaintiff in a lawsuit, they can generally be required to travel to the state where the lawsuit is pending, on the theory that they were the one who chose to sue there. See, e.g., Valme v. City of New York, 2016 U.S. Dist. LEXIS 5645 (E.D.N.Y. Jan. 15, 2016) ("Because a plaintiff generally has the ability to choose the forum for her action, there is a presumption that a plaintiff's deposition should ordinarily be held in the forum district where the litigation is pending."); Calsep, Inc. v. Intelligent Petroleum Software Sols., LLC, Case No. 4:19-CV-1118, 2019 WL 13027113, at *1 (S.D. Tex. Oct. 29, 2019) (“As a general rule, because a plaintiff selects the forum for filing suit, there is a rebuttable presumption that plaintiff is required to submit to deposition in the forum.”).
[2] Mirroring the “100-mile” rule in Rule 45, Fed. R. Civ. P. 32(a)(4) permits a party to use “for any purpose the deposition of a witness…if the court finds…(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States.”
[3] Anyone who remembers 1996 can attest to the extreme expense and/or dubious quality of any kind of videoconferencing available at the time. For a taste of it, consider that in May of 1996 Intel announced that it had developed revolutionary consumer video conferencing technology capable of displaying “4-12 frames per second.” https://www.nytimes.com/1996/05/30/business/intel-plans-pc-video-phone-technology.html
[4] Case No. MDL 2592, 2017 WL 2311719 (E.D. La. May 26, 2017).
[5] Id. at *4.
[6] Case No. 3:19-MD-2885, 2021 WL 2605957 (N.D. Fla. May 28, 2021).
[7] Id. at *4.
[8] See Wright & Miller, 9A Fed. Prac. & Proc. Civ. § 2461 (3d ed.) (noting that “District courts are divided on the issue”).
[9] 522 F. Supp. 3d 8 (S.D.N.Y. 2021).
[10] Id. at 23-24.
[11] Case No. 13-239 MJP, 2014 WL 2480259 (W.D. Wash. June 3, 2014).
[12] Id. at *2.
[13] Case No. 17-MD-2785-DDC-TJJ, 2021 WL 2822535 (D. Kan. July 7, 2021).
[14] Id. at *4.
