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Remote Depositions by Subpoena: Issues for the “Zoom” Era

Jul 12, 2022

Depositions are an important part of the discovery process in civil litigation. They are the only opportunity provided to attorneys in litigation to question and elicit testimony on the record prior to trial. Not so long ago the norm for the taking of depositions was to conduct them in-person. The COVID pandemic instantly changed that. Though depositions have long been conducted remotely by phone or video conference, doing depositions remotely via “Zoom” or other video conferencing platforms became the dominant- indeed, for much of the pandemic, the only – means of conducting depositions during COVID. Many attorneys who previously shunned the remote format except in instances where it was the only practical option came to appreciate the convenience and efficiency of the remote format during COVID. With the pandemic waning, it has become clear that remote depositions are firmly entrenched as a regular means, perhaps the preferred means, of conducting depositions.

Not surprisingly, the Federal Rules of Civil Procedure, with their lengthy process of drafting, review and approval before an amendment takes effect, have not kept pace with the large scale switch over to the remote format. There are, therefore, many procedural questions raised by the use of remote technologies that the current version of the rules simply do not address. One area where this is particularly true concerns compelling a nonparty witness to appear for a deposition remotely pursuant to a subpoena issued under Federal Rule of Civil Procedure 45. Rule 45(c) allows the issuance of a subpoena to “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.” How is the 100-mile-rule to be interpreted and enforced when the issuing attorney seeks to compel a deposition by remote means? Does internet access at a physical location within 100 miles of the deponent have to be provided? Or is it adequate to simply command the deponent to access the video conferencing platform online from whatever physical location he or she chooses? Also, where is the deposition taking place when the attorneys, the deponent and the court reporter are all at different physical locations but “together” online in a video conferencing platform? The rules do not answer these questions and, so far, the courts that have addressed these questions have not provided consistent answers.

In Broumand v Joseph, No. 20-cv-9137 (S.D. N.Y., Feb. 27, 2021) the District Court for the Southern District of New York ruled that a Rule 45 subpoena which sought to compel a witness to testify remotely at an arbitration hearing being held by videoconference was unenforceable. Even though the hearing at issue was taking place via videoconference, the venue for the arbitration was in New York City which was more than 100 miles from where the witness was located. In response to the argument that the 100-mile-rule was not applicable because the witness was not required to travel more than 100 miles “or indeed, at all” for the remote testimony, the court reasoned that the site of the arbitration does not change simply because certain participants remotely access the proceedings from elsewhere.” The hearing, therefore, was taking place where the arbitrator was sitting, in New York, which was more than 100 miles away from where the witness was located. The remote format did not change that and the subpoena was unenforceable.

By contrast, numerous courts have held that remote testimony takes place (for purposes of the 100-mile-rule) where the witness is physically located. In U.S. v. $110,000 in U.S. Currency, No. 21-c-981 (N.D. Ill., June 10, 2021), a witness argued that a subpoena calling for his remote deposition, issued by government attorneys located in Nebraska, was unenforceable because he resided over 100 miles away in Chicago. The subpoena compelled the witness to appear at a physical location in Chicago for the remote deposition. The court held that this “prevents the harm Rule 45(c) is meant to guard against.” The witness’s “place of attendance” for the deposition was in Chicago, within 10 miles of his home. The fact that the questioning attorneys were participating remotely from over 100 miles away did not change the analysis.

Still other courts have ruled, in essence, that the 100-mile-rule has no applicability at all in the context of a remote deposition. See In re Newbrook Shipping Corp., No. JKB-20-0150 (D. Md., November 3, 2020) (“Given the modification of the deposition notice to provide for a remote deposition over Zoom or other teleconferencing platform, the deposition notice no longer requires GMS or Sharma to travel more than 100 miles (or at all) to comply, so the Court declines to address GMS’ argument that the subpoena compels GMS to comply outside of the geographical bounds of Rule 45(c)”); see also Int’l Seaway Trading Corp. v. Target Corp., No. 20-mc-00086 (D. Minn. Feb. 22, 2021) (holding that subpoena which commanded witness to appear for a deposition “by virtual means” was enforceable even though the arbitration out of which the subpoena was issued was over 100 miles from where the witness was located: “Virtual attendance of this nature is consistent with the plain language of Rule 45(c)(1)(A) because . . . [the witness] can comply with the deposition from his home or anywhere else he chooses that is within 100 miles of his residence.”).

Until the amendments to the rules catch up with the rapid ascendancy of remote formats for depositions, practitioners can expect more inconsistent rulings from different courts across the country. The safest course, in the meantime, is to ensure that, at a minimum, a physical location from which the witness may access the remote platform that is within 100 miles of the location of the witness is provided in the subpoena.

Written by Jason Thomas.


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