Ninth Circuit Holds Rule 45 Subpoena Geographic Limits Apply To Remote Testimony: Is This Doom And Gloom For Trial By Zoom?

In an appellate case of first impression on a novel procedural issue, the Ninth Circuit on July 27 in Kirkland v. USBC, Los Angeles, quashed trial subpoenas purporting to command individuals who resided and worked out-of-state and more than 100 miles from the courthouse to “appear” at a hearing by contemporaneous video transmission.  Addressing an issue that had divided the district courts, the circuit court ruled that the methodology of transmitting the witness’ testimony did not obviate the geographic limits applicable to subpoenas under Federal Rule of Civil Procedure 45(c).  The circuit court ruled that even if Federal Rule 43(c) permits video testimony in certain circumstances, that rule only relates to the manner in which the testimony is received: it does not affect whether a trial court has the power to compel compliance, which is the focus of Rule 45(c).

The Ninth Circuit acknowledged that no appeals court had previously addressed the application of Rule 45(c)’s geographical limitations to testimony provided via remote video transmission, “a question of increasing import given the recent proliferation of such technology in judicial proceedings” particularly since the COVID-19 pandemic. The Ninth Circuit concluded the location of the witness does not change the location of the hearing. The circuit court found that notwithstanding technological advances or the bankruptcy court’s asserted “positive experiences” with videoconferencing technology, “the rules defining the federal subpoena power have not materially changed.” Those rules “do not exempt remote appearances from the geographical limitations on the power to compel a witness to appear and testify at trial.”  The Ninth Circuit thus issued a writ of mandamus and ordered the bankruptcy court to quash the subpoenas.

For those courts and commentators who have asked  whether remote trials are the “new norm” in the post-COVID-19 era, the Kirkland decision places at least the “pause” button on any trends towards more trials-by-Zoom.   To the extent the witnesses are outside of the geographical limits of the court’s subpoena power, a full-on “remote” trial may not be feasible.  At the very least, litigators facing this issue, regardless of which side they are on, will need to consider the impact of Kirkland on their strategic decisions regarding how to obtain the trial testimony of a witness who is outside of the traditional geographic limits of Rule 45 and may wish to reconsider whether they can compel an out-of-state witness to testify live at trial by video.


In Kirkland, a bankruptcy court in an adversary proceeding in Los Angeles issued Rule 45 trial subpoenas commanding individuals who lived and worked in the U.S. Virgin Islands to testify “virtually” via contemporaneous video transmission from their home.  The witnesses moved to quash the trial subpoenas because they were outside of the geographic scope of Rule 45(c), which identifies two metrics for defining the “place of compliance” with a trial subpoena:

  • First, a person can be commanded to attend a trial within 100 miles of where they reside, are employed, or regularly transact business.
  • Second, a person who is a party or a party’s officer can be commanded to attend a trial within the state where the person resides, is employed, or regularly transacts business, if the person would not incur substantial expense in complying.

The bankruptcy court denied the motion to quash.  The bankruptcy court analyzed a split among the district courts regarding “[w]hether Civil Rule 45’s geographical restrictions applies if a witness is permitted testify by videoconference from a location chosen by the witness.”  The bankruptcy court recognized it could not compel the parties to attend the trial in person because they live in the Virgin Islands and the hearing was in Los Angeles.  It found nonetheless that Federal Rule 43(c) authorizes courts, for good cause, in compelling circumstances, and with appropriate safeguards, to require testimony “by way of contemporaneous video transmission.”

The bankruptcy court found that the reason for the geographic limitations in Rule 45(c) was to “protect witnesses from the burden of extensive travel.”  Since the witnesses could testify from their home, the court reasoned, the subpoenas did not compel the witnesses to attend the trial more than 100 miles from where they resided.  Thus, the lower court concluded, the subpoenas satisfied Rule 45(c)’s “100-mile rule.”  Furthermore, the bankruptcy court “detailed its positive experience with witnesses appearing remotely at proceedings conducted during the COVID-19 pandemic” and that, in the bankruptcy court’s view, “remote testimony is an adequate substitution for in-person testimony because with technological advances, “there is little practical difference between in-person testimony and testimony via videoconference.”

The Ninth Circuit Decision

The Ninth Circuit rejected these arguments.  As a threshold matter, the circuit court found the bankruptcy court’s decision was contrary to the plain language of Rule 45(c).  The circuit court held that “Rule 45(c) governs the court’s power to require a witness to testify at trial and focuses on the location of the proceeding.”

The Ninth Circuit rejected the lower court’s and bankruptcy trustee’s views that the “location of the proceeding” is wherever the witness is testifying from as “nonsensical.”  The circuit court explained that interpreting the “place of compliance” with the subpoena “as the witness’s location when the witness testifies remotely [is] contrary to Rule 45(c)’s plain language that trial subpoenas command a witness to ‘attend a trial.’”  A “trial,” the Ninth Circuit held, “is a specific event that occurs in a specific place: where the court is located.”  In other words, “trials occur in court” regardless of where the witness of other participants are located or the method by which the witness appears.

The circuit court further explained that Rule 43(a) does not change the analysis of the court’s power to compel a witness to testify.  Explaining the differences between Rules 43 and 45, the Ninth Circuit stated:

Rule 45(c) governs the court’s power to require a witness to testify at trial, and Rule 43(a) governs the mechanics of how trial testimony is presented.  And logically, determining the limits of the court’s power to compel testimony precedes any determination about the mechanics of how such testimony is presented.

The Ninth Circuit also concluded that the bankruptcy court’s ruling would effectively render Rule 45 a nullity as it relates to remote testimony.  “Rule 45(d)(3)(a)(ii) plainly instructs that courts must ‘quash or modify’ subpoenas that exceed Rule 45(c)’s ‘geographical limits.’”

The circuit court further found that if the “place of compliance” for a trial subpoena changed from the courthouse to 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.”

In sum, the circuit court found that accepting the trustee’s and bankruptcy court’s reasoning would stretch the lawful bounds of the federal subpoena power well-beyond the bounds of Rule 45, which focuses on the location of the proceeding, not the location of the witness.


While binding only on federal courts within the Ninth Circuit, the Kirkland decision could very well lead other circuits to follow suit.  As the first circuit court to decide the issue, Kirkland is persuasive authority to litigants challenging tribunals seeking to command out-of-state witnesses who live and work more than 100 miles from the hearing location to testify by contemporaneous video transmission, such as by Zoom, Teams, or similar types of platforms.  The Kirkland decision could thus have a profound impact on how federal trials are conducted in the post-Zoom/Teams era, including requiring courts to rely more on traditional deposition practices rather than counting on being able to command a witness who is outside of the geographic boundaries imposed by Rule 45(c) to present “live” testimony by contemporaneous video transmission.

This is an important issue for federal litigants particularly given the growing acceptance and use of modern real-time video transmission capabilities, such as Zoom and MS Teams.  Litigants should be mindful of the geographic limitations under Rule 45 in determining whether they can compel a witness to attend a hearing, and they should not rely on the video format permitted (sometimes) under Rule 43 as a way to end-run or expand Rule 45’s geographic limitations on a court’s power to issue a trial subpoena.

The court’s ruling in Kirkland could impact a recent trend we have observed in representing respondents facing disciplinary proceedings conducted by the USPTO’s Office of Enrollment and Discipline against trademark and patent attorneys accused of unethical conduct. ALJs who regularly hear those cases have been issuing orders in confidential disciplinary proceedings that purport to compel a fully “virtual” hearing in which the court is located in one place (usually the District of Columbia) and the parties and participants are scattered geographically.  Those decisions are made with the understanding, evidently, that a Rule 45(c) subpoena can compel a witness in California, for example, to attend a hearing in Washington, D.C.

Before the COVID-19 pandemic, PTO disciplinary hearings were often conducted where the respondent was located.  This would then permit the parties to have district courts issue subpoenas commanding the in-person appearance of the witness at the place of the trial–which is typically a federal court room “borrowed” by the USPTO for purposes of the disciplinary trial.  ALJs conducting these proceedings always state their strong preference for live real-time hearing testimony, and the only way to ensure witnesses would appear pursuant to Rule 45(c) subpoenas was to conduct the hearing near where the respondent and his or her witnesses were located.

During the COVID-19 pandemic, ALJs began sua sponte issuing orders purporting to compel all-virtual disciplinary trials.  The location of the disciplinary hearing determines whether witnesses will be compelled to appear remotely by contemporaneous video transmissions.  Even though social distancing no longer limits or restricts in-person proceedings, the ALJs–with the blessing of the OED Director–continue to order all “virtual” hearings conducted on Microsoft Teams.  The ALJs and OED attorneys apparently really like that format, which is great for them.  However, their own preferences aside, they are still bound by the geographic limits imposed by Rule 45(c).

Kirkland is the latest and most authoritative decision yet to debunk the rationale used by some ALJs purporting to compel parties to attend their hearing “virtually” with the tribunal located in the D.C. area instead of the tribunal relocating itself so that the respondent and key witnesses can be compelled to attend a hearing in person pursuant to Rule 45(c).   Given the quasi criminal nature of attorney disciplinary proceedings, and the preference for live witness testimony, Kirkland provides a roadmap for respondents who want to present witness testimony live and in-person to argue that their disciplinary hearings should be conducted from a place whereby the respondents and witnesses are within the geographic limitations of a Rule 45(c) trial subpoena.  While judges may find the video format convenient for them, Kirkland and those courts that follow its reasoning provide a strong argument for a respondent in a USPTO disciplinary proceeding to demand that the location of their hearing be determined–and relocated–based on Rule 45(c)’s geographic limitations.  Even “all remote” trials are limited by Rule 45.

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