IN RE: JOHN KIRKLAND, ET AL V. USBC, LOS ANGELES, No. 22-70092 (9th Cir. 2023)
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Petitioners moved to quash trial subpoenas issued by the United States Bankruptcy Court for the Central District of California, requiring them to testify via contemporaneous video transmission from their home in the U.S. Virgin Islands. The bankruptcy court denied their motions, and the Petitioners sought mandamus relief from this court. Petitioners argued that Federal Rule of Civil Procedure 45(c)(1) prohibits the bankruptcy court from compelling them to testify, even remotely, where they reside out of state over 100 miles from the location of the trial.
The Ninth Circuit granted the petition. The panel held that the bankruptcy court erred in refusing to quash the trial subpoenas because, under the plain meaning of the text of the Rules, the geographic limitations of Rule 45(c) apply even when a witness is permitted to testify by contemporaneous video transmission. The panel concluded that Rule 45(c) governs the court’s power to require a witness to testify at trial and focuses on the location of the proceeding, while Rule 43(a) governs the mechanics of how trial testimony is presented. Weighing the Bauman factors to determine whether issuance of a writ of mandamus was appropriate, the panel concluded that the third factor, clear error, weighed in favor of granting mandamus relief. The panel concluded that the fifth Bauman factor also weighed in favor because the petition presented an important issue of first impression. The panel held that the third and fifth Bauman factors were sufficient on their own to warrant granting mandamus relief in this case.
Court Description: Mandamus Petition / Civil Procedure The panel granted a petition for a writ of mandamus and ordered the United States Bankruptcy Court for the Central District of California to quash trial subpoenas requiring petitioners to testify via contemporaneous video transmission from their home in the U.S. Virgin Islands.
The bankruptcy court ordered Poshow Ann Kirkland, a party in her capacity as sole trustee for the Bright Conscience Trust, and John Kirkland, a non-party witness, to testify at a trial regarding claims brought against the Trust in an adversary proceeding. The Kirklands moved to quash their * The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. trial subpoenas because they violated the geographic limitations set forth in Federal Rule of Civil Procedure 45(c). The bankruptcy court denied the motion to quash on the grounds that, under Rule 43(a), good cause and compelling circumstances warranted ordering the Kirklands’ remote testimony.
Rule 45(c) provides that a person can be commanded to attend a trial within 100 miles of where the person resides, is employed, or regularly transacts business in person. Rule 45(c) further provides that a person can be commanded to attend a trial within the state where the person resides, is employed, or regularly transacts business in person if the person is party or a party’s officer and would not incur substantial expense. Rule 43(a) provides that testimony must be taken in open court, but remote testimony may be allowed for good cause in compelling circumstances and with appropriate safeguards.
The panel held that the bankruptcy court erred in refusing to quash the trial subpoenas because, under the plain meaning of the text of the Rules, the geographic limitations of Rule 45(c) apply even when a witness is permitted to testify by contemporaneous video transmission. The panel concluded that Rule 45(c) governs the court’s power to require a witness to testify at trial and focuses on the location of the proceeding, while Rule 43(a) governs the mechanics of how trial testimony is presented.
Weighing the Bauman factors to determine whether issuance of a writ of mandamus was appropriate, the panel concluded that the third factor, clear error, weighed in favor of granting mandamus relief. The panel concluded that the fifth Bauman factor also weighed in favor because the petition presented an important issue of first impression, requiring the construction of a federal procedural rule in a new context, given the recent proliferation of videoconference technology in all types of judicial proceedings. The panel held that the third and fifth Bauman factors were sufficient on their own to warrant granting mandamus relief in this case. The panel further concluded that the first Bauman factor, the availability of alternate means of relief, did not weigh heavily against granting mandamus relief; the second factor, the likelihood of irreparable harm, supported granting relief; and, because the fifth factor strongly weighed in favor, it was not necessary to analyze in depth the fourth factor, whether the case involved an oft-repeated error.
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