Do Remote Depositions From Home Violate Rule 45(c)’s 100-Mile Subpoena Limit?

We recently blogged about a case in which a court ruled that a subpoena for a remote deposition did not violate Federal Rule of Civil Procedure 45(c)’s 100-mile limit on subpoenas for non-party witnesses because the deponent would be testifying – remotely – within 100 miles of his residence.

The court’s ruling made a lot of sense. After all, how onerous could a subpoena be if compliance means no more than cracking open a laptop in the comfort of the deponent’s home?

As it turns out, it’s not that simple.

100 Miles From Where?

Let’s look at the rule. Rule 45(c) provides in relevant part:

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:

  1. within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
  2. within the state where the person resides, is employed, or regularly transacts business in person, if the person
    1. is a party or a party’s officer; or
    2. is commanded to attend a trial and would not incur substantial expense.

Boiled down to what’s essential for this discussion, the rule states that “[a] subpoena may command a person to attend a trial, hearing, or deposition … within 100 miles of where the person resides, is employed, or regularly transacts business in person.”

That seems clear enough. A remote deposition taken from the deponent’s home is, obviously, taken zero miles from where the deponent resides. Well within Rule 45(c)’s 100-mile limit, you might say.

This way of reading Rule 45(c) has broad support.

In U.S. v. $110,000 in U.S. Currency, No. 21-c-981 (N.D. Ill., June 10, 2021), the deponent asserted that the subpoena (which allowed him to testify remotely from a near-home location in Illinois) violated Rule 45 because the attorneys questioning him were located in Nebraska. The court rejected that argument because, it said, the purpose of Rule 45(c)’s 100-mile limit is to “protect third parties from the undue burden of traveling more than 100 miles to provide testimony or produce documents in a proceeding in which they are not a party.”

The court found support for this conclusion in 2013 advisory committee notes to Rule 45, which stated that “Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles.”

Several other courts have agreed that rule 45(c) is concerned with how far a non-party witness is required to travel to participate in a remote deposition – not how far the deposition takes place from the trial court or the attorneys asking the questions.

In International Seaway Trading Corp. v. Target Corp., No. 0:20-mc-86 (D. Minn. Feb. 22, 2021), the court held that virtual testimony taken more than 100 miles from the trial court’s location “is consistent with the plain language of Rule 45(c)(1)(A) because [the deponent] has been commanded to attend the deposition within 100 miles of where he resides.”

In In re Newbrook Shipping Corp., Misc. No. JKB-20- 0150(D. Md. Nov. 3, 2020), the court remarked that a subpoena for a remote deposition that required less than 100 miles’ travel did not violate Rule 45(c).

Finally, a similar outcome was reached earlier this year in In re 3M Combat Arms Earplug Products Liability Litig., No. 20-cv-00153 etc. (N.D. Fla., Feb. 18, 2022), where the court declared:

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).

So what’s the problem? For starters, Rule 45(c) doesn’t contain the word “travel” (though it does use the word “attend,” which has a similar connotation).

Also, sweeping aside Rule 45(c)’s 100-mile geographic limit for remote depositions would mean that trial courts have the power to compel remote testimony from any person in the country so long as the testimony is obtained remotely.

Broumand: A Contrarian View

The court in Broumand v. Joseph, No. 20-cv-9137 (S.D. N.Y., Feb. 27, 2021), declined to go that far. The Broumand court believed that virtual testimony shouldn’t be used to evade Rule 45(c)’s 100-mile geographic limit.

Rule 45(c), the court said, concerns itself with the location of the proceeding at which the deponent would have to testify – not how far a person would have to travel. “Any other reading would render Rule 45(c)’s geographical limitations a nullity,” the Broumand court said.

The court reasoned that the location of the issuing court – not the deponent’s location – is the place from which the 100-mile limit must be measured. Accordingly, it said, subpoenas that compel remote testimony given at a location more than 100 miles from the courthouse are unenforceable “because they seek to compel respondents to ‘attend’ an evidentiary hearing that is located outside the geographical limits set forth in Rule 45(c).”

Rule Changes Seem Necessary

Litigants are fortunate that the vast majority of pretrial discovery activities occurs by agreement among the parties and that, in almost every case, trial courts encourage as much discovery as possible in order to do justice and encourage settlements where possible. And, if one ventured a guess, it’s probably the case that very few non-party witnesses are using Rule 45(c) to avoid giving remote depositions. Nevertheless, it’s unfortunate to have two competing interpretations of such an important provision in the federal rules.

Procedural uncertainty is sand in the gears of justice, to be eliminated wherever possible. Perhaps someday federal rules drafters will see the need for amendments to Rule 45(c) to dispel the uncertainty now hovering over a trial court’s authority to compel virtual testimony from far-flung witnesses.