Out-of-State Witnesses: Are Zoom Trial Appearances a New Normal?

• Date: 01 July 2022
• Author: Devine, Alaina

IN mass tort litigation, out-of-state employees of a corporate defendant party are routinely deposed and subject to discovery. The federal rules make clear that an out-of-state party and the officers, directors, and managing agents of that party are required to appear for deposition without regard to geographical limitations on the subpoena. The party can face sanctions for failure to appear. (1) A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice alone and, instead, is treated as a non-party who must be served with a subpoena pursuant to Rule 45. (2) Practically speaking, corporate defendants routinely and voluntarily produce non-party employee witnesses for deposition without the need for out-of-state subpoena practice.

However, when the cases reach trial, what obligation does the company have to produce out-of-state employee witnesses to testify at trial? How have the advances in technology and remote trial appearances in the age of COVID changed this obligation? This article will analyze the rights and obligations, and advocates for strict compliance with Rule 45(c) for out-of-state non-party witnesses.

1. Background

   Federal Rule of Civil Procedure 45(c) governs the validity of trial subpoenas. The rule does not provide any authority to compel anyone from out of state to attend trial unless that party or party officer resides, is employed, or regularly transacts business in the state where the subpoena is issued. Prior to the 2013 amendments to Rule 45, there was a split in authority on whether a company had an obligation to produce an out-of-state party officer for trial. (3) With the 2013 amendments to the rule, the drafters made clear that Rule 45(c)(1)(A) does not authorize nationwide subpoena service for any witnesses, even including a party or party officer. Rule 45 is now clear that a subpoena for trial to require a party or party officer to travel more than 100 miles is invalid unless the party or party officer resides, is employed, or regularly transacts business in person in the state. Non-party witnesses are subject to the 100-mile rule, deeming subpoenas for out of state witnesses invalid unless they reside or work within 100 miles of the courthouse at the time they are called to testify. (4)

   For plaintiffs who wish to call a defendant company's non-party employees to testify live at trial, traditionally those witnesses must reside or work within 100 miles of the courthouse to be compelled to appear live to testify. Subpoenas issued to employee witnesses who are beyond the court's jurisdiction are invalid, unenforceable, and properly subject to a motion to quash. Instead, plaintiffs ordinarily must rely on the deposition testimony of non-party employee witnesses in their case-in-chief. In a circumstance where plaintiffs have selected a forum beyond the subpoena power for defendant employees, a corporate defendant is uniquely situated to decide whether to produce live witnesses or shield their witnesses and rely instead on deposition testimony. (5) When an out-of-state-corporate employee witness would not be produced, defendants understand the heightened need for adequate preparation and presentation of the out-of-state employee witnesses at their deposition. If the defendant company does not wish or is not able to call an out-of-state employee (or perhaps anticipates that the witness may later be beyond their control as a former employee) as a witness live at trial, the defendant company often conducts a direct examination of their employee witnesses at the time of the deposition to preserve any favorable testimony.

   However, a defendant company often wishes to call all or some of their out-of-state employee witnesses live at trial in their case-in-chief. Often, plaintiffs accuse out-of-state corporate defendants of "gamesmanship" in selecting whether and when to produce certain witnesses at trial. Some courts have recognized the inherent unfairness in a defendant's making their own witnesses unavailable during plaintiffs' case-in-chief only later to seek to call these witnesses live in their defense case-in-chief. (6) In Iorio, the Southern District of California quashed subpoenas that would have compelled trial testimony outside...