In the so-called “Post-COVID” age of litigation, virtual depositions are commonplace and sometimes preferred in third-party subpoena ad testificandum practice. A major reason is to eliminate the travel of both subpoenaed witnesses and lawyers, particularly when witnesses are many hours away from a law office. Yet in federal subpoena practice, the convenience of virtual witness depositions is not easily comported with the subpoena-governing system outlined in Federal Rule of Civil Procedure 45. The major mistakes we see lawyers make in this arena are discussed below.
The first mistake is ignoring a fundamental subpoena requirement under Rule 45. Under Rule 45, a subpoena must (i) state the Court in which it is issued (ii) state the title of the action its civil-action (iii) command each person to attend and testify or produce documents or both “at a specified time and place” and (iv) set out the text of Rule 45(d) and (e). Most relevant to this discussion is bullet point (iii), where the subpoena requires a person to attend and testify at a certain place. Even in the “Pre-COVID” era, Courts interpreted “a specified . . . place” to be a geographical location, so simply listing a website or email address fails to meet this basic requirement under Rule 45. See, e.g., CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017) (holding an email address is not place of compliance because “the place of compliance must be a physical ‘place’ subject to ‘geographical limits’ and capable of being measured according to mileage.”)
As Zoom depositions became increasingly normal, many lawyers found no need to list a specific place of compliance because the physical location of the witness is irrelevant. Although Rule 45 might be in line for an amendment on this issue, the fact remains that “Zoom” or other similar videoconferencing applications are not places of compliance. Instead, teleconferencing is a method of taking a deposition. Frobe v. UPMC St. Margaret, 2021 WL 9628848 (W.D. Pa. 2021) (“‘Zoom Videoconferencing’ is not a ‘Place;’ rather, it is a method of taking the deposition.”). Although most witnesses and their lawyers aware of this distinction may not contest a Rule 45 subpoena on these grounds, a Court may be hesitant to enforce a subpoena that falls short of this fundamental requirement of Rule 45. This could potentially require the reissuance of a subpoena, a problem in the fast-paced federal court practice.
In the absence of a place of compliance, many Courts will generously amend such defective subpoenas by listing the place of compliance as the witness’s residence or place of business. Indeed, lawyers who understand this distinction usually follow this lead when issuing subpoenas for Zoom depositions. See F.R.C.P. 30(b)(4) (stating that, for purposes of seeking sanctions, remote depositions occur “where the deponent answers the questions.”) This reformation, however, raises a second issue—geographical limitations on enforcement. Rule 45 requires subpoena enforcement to occur in the “court for the district where compliance is required[.]” See F.R.C.P. 45(g). If the Court generously amends a party’s subpoena to make the place of compliance as the witness’s residence or place of business, it may find itself in a position where it can nonetheless not enforce the subpoena for lack of jurisdiction. For example, in Pagan v. Dent, 2023 WL 2226792, (M.D. Pa. Feb. 24, 2023), a party attempted to enforce in the Middle District of Pennsylvania a subpoena listing the place of compliance as “Via ZOOM.” Despite this deficiency, the Court generously interpreted the “specified . . . place” for Rule 45 purposes as the witness’s place of principal place of business, which was San Diego, California. Yet because Rule 45(g) required enforcement to occur in the district court with jurisdiction over the place of compliance—in this case, the Southern District of California—the Middle District of Pennsylvania Court refused to enforce the subpoena.
A third mistake we see lawyers make is to conduct virtual depositions without stipulations or Court Orders. Under the federal rules, a stipulation in writing or an Order permitting a remote deposition is required for a remote deposition to take place. See F.R.C.P. 30(b)(7). Although a written stipulation can easily be obtained through an opposing party’s counsel, obtaining a written stipulation from an unrepresented person that is the object of a subpoena can be more challenging, particularly if that person is recalcitrant and refuses to cooperate. In the situation of a recalcitrant subpoenaed person, counsel must, under the federal rules, file a motion seeking leave for a remote deposition before issuing the subpoena. Otherwise, the subpoena is arguably facially invalid. See also Frobe v. UPMC St. Margaret, 2021 WL 9628848 at *2 (W.D. Pa. 2021) (holding that even in a remote deposition the officer administering the oath to the deponent under F.R.C.P. 28(a) must be “physically present at the location of” the deponent).
Of course, many times lawyers will nonetheless succeed with issuing their defective subpoenas, and subpoenaed persons may simply comply with the defective subpoena. When it comes time for subpoena enforcement, however, a Court that understands these procedural nuances may refuse to enforce the defective subpoena, leaving lawyers with a denied motion and an awkward talk to give to their clients.
For additional questions, please contact Glen Shikunov, Esq. or Robert J. Cahall, Esq., and/or Christopher S. Regan, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.