Can Remote Testimony Create a Loophole for Geographic Limits on Non-Party Subpoenas?
During the COVID-19 pandemic, courts and parties adapted and began utilizing remote means to conduct depositions, hearings, and even trials. The use of remote technology to conduct such proceedings is now widely accepted in litigation and expected to remain useful as the rest of the world returns in person.
However, under both the Federal Rules of Civil Procedure and Florida Rules of Civil Procedure there are certain geographical limitations on subpoenaing a non-party to testify in a case. Therefore, courts around the country are confronting new questions as to whether the use of remote technology can get around these geographical limitations.
Under Federal Rule 45, a non-party to a case cannot be forced to testify at a trial, hearing, or deposition that will take place beyond 100 miles from where the non-party resides, is employed, or regularly transacts business in person. The only exception provided in Rule 45 is that a non-party can be compelled to testify at a trial more than 100 miles away, if the non-party would not incur substantial expense and the trial is within the state where the person resides, is employed, or regularly transacts business in person. The parallel rule in Florida—Rule 1.410—is, understandably, a bit more restrictive than Rule 45. It says that a non-party to a case may only be required to testify in the county where the person resides, is employed, or transacts business in person, “or at such other convenient place as may be fixed by an order of court.”
So, the question is whether a subpoena that requires a non-party to testify remotely, but in a proceeding that is taking place beyond the geographical limitations, violates these rules.
While the subpoena rules do not mention remote testimony, there are other rules that speak to when remote testimony is permitted. For example, under Federal Rule 30, parties may stipulate, or the court may order, that a deposition be taken by remote means. The analogous Florida rule to Federal Rule 30 is Rule 1.310, which allows a court to order that a deposition be taken by telephone.
Moreover, Federal Rule 43 provides that a court may permit testimony “by contemporaneous transmission from a different location” if there is “good cause in compelling circumstances” and there are “appropriate safeguards” in place. Likewise, Florida Rule 1.451 gives the courts discretion to allow testimony at a hearing or trial “by contemporaneous audio or video communication equipment” if (1) all parties agree, or (2) the party requesting remote testimony makes a written request with reasonable notice to all other parties and shows good cause.
None of the rules, however, address whether remote testimony can require a non-party to testify who is not within the geographical restrictions of the subpoena rules. If this were allowed, remote testimony might create a loophole in these rules.
Indeed, trial courts around the country are divided on where to go from here:
- some courts have held that courts cannot compel parties to testify remotely if the witness is outside the geographical limitations of the court’s subpoena power, see Broumand v. Joseph, 522 F. Supp. 3d 8 (S.D. N.Y. 2021);
- some courts have held that courts can compel witnesses to testify remotely in a proceeding that takes place more than 100 miles of their home, see United States v. $110,000 in U.S. Currency, Case No. 21 C 981, 2021 WL 2376019 (N.D. Ill. June 10, 2021); and
- other courts have allowed live remote testimony when witnesses are more than 100 miles from the issuing court only when there is good cause and under compelling circumstances. See In re: 3M Combat Arms Earplug Products Liability Litigation, Case No. 19-2885, 2022 WL 504451 (N.D. Fla. Feb. 18, 2022)
Thus, for now, if you receive a subpoena requiring remote testimony, whether you have a good argument to quash the subpoena will depend on where you are located.
If you have received a subpoena requiring your testimony and have questions, give us a call at 561-659-7878 to speak to an experienced attorney.