As federal rulemakers move to extend the reach of trial subpoenas for remote testimony, WilmerHale partner Tim Cook and counsel Gillian Farrell are helping trial lawyers understand what the change would and would not do.

In “How Rule 45 Update May Change Remote Trial Subpoenas,” published in Law360’s Expert Analysis section on Oct. 20, the same day the Committee on Rules of Practice and Procedure recommended the amendment to the US Supreme Court, Cook and Farrell examine the proposed change to Federal Rule of Civil Procedure 45(c). Drawing on their trial experience in intellectual property litigation, they offer practical guidance on the amendment’s implications and when remote testimony makes strategic sense.

The amendment answers a 2023 Ninth Circuit ruling that Rule 45’s geographic limits apply even when a witness testifies from home. By treating the witness’ location, not the courthouse, as the place of compliance, it would effectively give trial courts nationwide subpoena power for remote testimony. It would not, however, change Rule 43(a)’s requirement that remote testimony be used on upon a showing of “good cause in compelling circumstances.” The authors also explain how the change could reshape disputes over distant witnesses, including senior executives, and raise open questions for foreign witnesses.

Cook and Farrell caution that “just because counsel can use remote trial testimony in more circumstances does not mean that they should.” They urge counsel to weigh the subject matter of the testimony, how a witness will present remotely, and the existing deposition record, and to revisit witness lists for third parties once written off as unreachable. If adopted, the amendment would take effect on December 1, 2027.

Read the full article here.