No Courthouse, No Problem: Rule 45(c)’s Remote Testimony Fix

The amendments respond to the Ninth Circuit’s decision in In re Kirkland, which held that Rule 45’s 100-mile geographic limit bars subpoenaing distant witnesses even for remote testimony.¹

The Problem: In re Kirkland

Rule 45(c)(1) limits a court’s subpoena power to 100 miles from where the witness resides, works, or regularly transacts business in person. Separately, Rule 43(a) allows remote trial testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” In Kirkland, the Ninth Circuit held that the 100-mile limit applies even when a witness testifies remotely. As the court put it, “[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 result: Courts cannot compel remote testimony from nonparty witnesses located more than 100 miles from the courthouse, regardless of how convenient a remote appearance would be. 

The Fix

The proposed new Rule 45(c)(2) provides:

“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.” 

The bottom line: federal courts would measure the 100-mile limit from where the witness sits to testify, not from the courthouse. This effectively creates nationwide subpoena power for remote testimony. Courts must still find “good cause in compelling circumstances and with appropriate safeguards” under Rule 43(a) before permitting remote trial testimony. 

Although the amendment is nominally directed to trial testimony, the drafting committee observed that Kirkland “seems to be having some unfortunate ripple effects” on remote deposition practice, with some district courts questioning whether Rule 45 subpoenas could compel testimony from nonparty witnesses located outside the 100-mile limit even for remote depositions. The committee’s addition is intended to confirm that courts possess nationwide subpoena power for both in-court testimony and discovery, provided the witness is not required to travel beyond Rule 45(c)(1)’s limits. The broader rules package also includes a companion amendment to Rule 26(a)(3)(A) governing disclosure of “whether the testimony will be in person or remote” and a proposed Rule 45(b)(1) change adding that “the subpoena must be served at least 14 days before the date on which the person is commanded to attend.” 

What It Means

• Broader Witness Reach: Parties will be able to compel live remote testimony from distant nonparties. 

• Live Beats Stale: The real choice is live remote testimony versus an old deposition. Weigh that trade-off early. 

• Rule 43(a) Still Controls: Nationwide reach does not guarantee remote appearance; courts keep discretion to require good cause and deny remote testimony even by consent. 

• Watch for Gamesmanship: Be ready to challenge abusive over-designation and lock in protective orders early. 

Current Status

The amendment is advancing through the rulemaking process. The public comment period closed February 16, following a public hearing on January 27. The proposal now moves through the standard rulemaking path: review by the Standing Committee, then the Judicial Conference, and then the US Supreme Court. If it clears each step and reaches US Congress by May 1, 2027, the amendment would take effect December 1, 2027. We will continue to monitor any changes.

[1] In re Kirkland, 75 F.4th 1030, 1051 (9th Cir. 2023).