Proposed Rule 45 Amendments Clarify Subpoena Power Over Distant Witnesses
February 16 is the end of the public comment period on recently proposed federal rule changes affecting remote testimony and remote depositions. The rules revisions would make clear that federal trial courts have authority to order nonparties to give remote trial testimony from locations within 100 miles of their residence or employment address.
The rules change would also clarify that these same geographic limitations apply to subpoenas for remote deposition testimony.
The new rule makes explicit what many practitioners assumed: a witness can be compelled to provide remote deposition testimony from their local area, regardless of distance from the courthouse, so long as the testimony is authorized by stipulation or court order.
The proposed changes are part of a larger rules revision effort published by the Judicial Conference Committee on Rules of Practice and Procedure in August 2025. A revision to Rule 45 of the Federal Rules of Civil Procedure seeks to resolve confusion about federal courts’ power to compel remote testimony from witnesses located beyond traditional geographical limits. The amendments directly respond to the Ninth Circuit’s 2023 decision in In re Kirkland, 75 F.4th 1030 (9th Cir. 2023), which restricted federal district courts’ ability to subpoena distant witnesses for remote trial testimony.
The Kirkland case involved a bankruptcy proceeding in California. The bankruptcy court ordered two witnesses residing in the U.S Virgin Islands to give trial testimony remotely from a location near their residence. In the federal system, Rule 45(c) provides that a nonparty witness can be commanded to attend a trial within 100 miles of where the person resides, is employed, or regularly transacts business in person. The bankruptcy court reasoned that, in the case of remote testimony, the place of compliance is not the location of the court that issued the subpoena but is instead the location where the testimony is given.
In Kirkland, the Ninth Circuit held that this reading of Rule 45(c) was error. The appellate court held that, under the plain meaning of the rule, the geographic limitations of Rule 45(c) apply even when a witness is permitted to testify remotely.
From the Kirkland opinion:
[N]either the text of the rules nor the advisory committee’s notes establish that the 100-mile limitation is inapplicable to remote testimony or that the “place of compliance” under Rule 45 changes the location of the trial or other proceeding to where the witness is located when a witness is allowed to testify remotely.
The changes to Rule 45(c) would undo Kirkland‘s interpretation and make clear that, in the case of remote trial testimony, the 100-mile geographic limit applies to the place where the testimony is given.
Specifically, the committee is proposing to add a new subsection (c)(2) to Rule 45, which would read as follows:
(2) For Remote Testimony. Under Rule 45(c)(1), the place of attendance for remote testimony is the location where the person is commanded to appear in person.
This rules change, while nominally directed to trial testimony, may also have significance for remote deposition practice.
The drafting committee observed, in a note, that the Kirkland opinion “seems to be having some unfortunate ripple effects” outside of the question of subpoenas for remote trial testimony. Some district courts, it said, have questioned whether Rule 45 subpoenas could compel testimony from nonparty witnesses located outside the 100-mile geographical limit, even for remote depositions.
The drafting committee’s seemingly simple addition to Rule 45 would accomplish two objectives. First, it would confirm that courts possess nationwide subpoena power for both in-court testimony and discovery, provided the subpoena does not require the witness to travel beyond distances authorized under Rule 45(c)(1). Second, it would establish that a witness providing remote testimony “attends” at their physical location, not at the courthouse.
Currently, attorneys conducting remote depositions face uncertainty when the deponent is located far from the courthouse. The Kirkland decision raised questions about whether courts could enforce subpoenas for such depositions, even when the deponent appears remotely from a location within 100 miles of their residence. This uncertainty threatens the efficiency gains attorneys achieved through remote deposition technology.
The new rule makes explicit what many practitioners assumed: a witness can be compelled to provide remote deposition testimony from their local area, regardless of distance from the courthouse, so long as the testimony is authorized by stipulation or court order.
The drafting committee emphasized that the amendment “does not alter the standards for deciding whether to permit in-court remote testimony.” Existing rules still govern when remote testimony is appropriate. For depositions, parties must either stipulate to remote testimony or obtain court approval.
Elsewhere in the rules revision package, a proposed amendment to Rule 45(b)(1) would add a 14-day notice requirement when a subpoena commands attendance at a trial, hearing, or deposition. The committee believes that this advance notice will give witnesses reasonable time to comply and reduce emergency motions for relief.
Written comments are due by Feb. 16, 2026. Interested parties can submit comments through the Judiciary’s website at https://www.uscourts.gov/forms-rules/proposed-amendments-published-public-comment. If approved after the comment period, these amendments would likely take effect in December 2027, following the standard rulemaking timeline for federal procedural rules.