Federal Subpoena Power is Limited and Does Not Bend to Convenience

Remember the case we told you about last week where the court shutdown plaintiff’s attempt to use non-mutual offensive collateral estoppel?  Well, that wasn’t that plaintiff’s only loss that week.  In a companion decision, the court also rejected plaintiff’s attempt to use Federal Rule of Civil Procedure 43(a)’s remote trial testimony rule to skirt the jurisdictional limitations of Rule 45(c)(1).  Coblin v. Depuy Orthopaedics, Inc., 2024 WL 1357571 (E.D. Ken. Mar. 29, 2024). 

As we explained in our prior post, this case was remanded from the hip implant MDL.  During which numerous fact witnesses were deposed; including, the five current and former employees of defendants who plaintiff subpoenaed to testify at trial remotely.  None of the witnesses reside or work within 100 miles of the courthouse.  Therefore, none fall within the subpoena power of the court pursuant to Rule 45(c)(1).  To be clear, that means the court has no authority to compel those witnesses to appear at trial. 

Rule 43(a) provides:

For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

What plaintiff asked the court to do is to read Rule 43(a) as an expansion of its subpoena power under Rule 45.  Despite an unexplainable split in district court decisions on this issue, Coblin follows the Ninth Circuit decision in In re Kirkland, 2023 WL 4777937 (9th Cir. Jul. 27, 2023), that we discussed here, which refused such an expansion. 

Coblin recognizes, as did the Ninth Circuit, that while at first glance the two rules appear in conflict, “upon closer reading, however, the rules provide two distinct and different directives.”  Coblin, at *2 (emphasis added).  Rule 45 governs whether the court can require a witness to testify at trial.  Rule 43 governs the “mechanics” of how trial testimony is presented.  Therefore, the first question the court must answer is whether the witness has been properly subpoenaed under Rule 45.  The court cannot compel how a witness will testify, “if it cannot first ensure the witness is within the Court’s reach to compel.”  Id. A “textual reading” of the rules mandates this conclusion.  Id. (citing similar decisions). 

District court’s who have used Rule 43 to expand their subpoena powers to reach the entire United States via modern remote capabilities, have done so not only by disregarding the text of the rules, but also disregarding the Advisory Committee Notes which state:

When an order under Rule 43(a) authorizes testimony from a remote location, the witness can be commanded to testify from any place described in Rule 45(c)(1).”

Fed. R. Civ. P. 45 (Advisory Committee’s Note, 2013 amendment) (emphasis added).  This note leaves no room for doubt.  The geographical limits of Rule 45(c) apply to both live and remote testimony. 

The court acknowledges that cases such as Coblin, drug/device litigation, are complex; that generally courts prefer live witnesses; and that technology has advanced to the point where remote testimonyis reliable and easy.  But “practical sentiment” doesn’t mean the court can “ignore the plain edicts” of textual analysis “for the sake of convenience.”  Id. at *3.  As the court summarizes:

Rule 45(a)(2) states that a “[a] subpoena must issue from the court where the action is pending.” FED. R. CIV. P. 45(a)(2) (emphasis added). The upcoming trial is set for here in the Eastern District of Kentucky. The Court cannot issue a subpoena that compels actions by a witness well beyond its jurisdictional limits simply because technology has eased the practical burdens. Federal courts remain one of limited jurisdiction and practical concerns cannot drive the Court to ignore such fundamental principles.

Id.

As we discussed recently, in our post about remote depositions, Coblin‘s reading of the federal rules is the majority rule, with most of the exceptions being MDLs – where courts have unfortunately developed the habit of ignoring rules that they find inconvenient.

In less than a month, plaintiff is going to trial without his non-mutual offensive collateral estoppel, without his remote witnesses, and most likely in need of a new plan.