LCJ Opposes Rule Changes Lowering Remote Testimony Safeguards

LCJ simultaneously filed a Public Comment on proposed changes to Rule 45(c) and a Rules Suggestion on Rule 43(a), opposing proposed and potential amendments which could significantly weaken safeguards on remote trial testimony. The Public Comment is here, and the Rules Suggestion is here.

The Advisory Committee on Civil Rules is proposing to amend Rule 45 and is now considering public comments submitted during the six-month public comment period which just closed. The Advisory Committee is considering whether to propose changes to Rule 43 but has not yet formally presented an amendment for public comment. LCJ is urging the Advisory Committee to pause its process on the Rule 45 amendment in order to consider it together with any proposed changes to Rule 43.

Proposed Rule 45 Amendment: “Unnecessary and Risks Unintended Consequences”

LCJ’s new Public Comment to the Advisory Committee on Civil Rules characterizes the Advisory Committee’s proposed amendment re-defining the “place of attendance” for remote testimony provisions as “unnecessary” and argues that the change “risks serious unintended consequences.” LCJ also argues that, because Rule 45 is “intertwined with the standards and process of Rule 43, the Advisory Committee should not proceed with any Rule 45 amendments separately if it intends to propose a Rule 43 amendment…” LCJ urges the Advisory Committee to step back in order to take a comprehensive approach rather than tackling the rules in piecemeal fashion.

If the Advisory Committee decides to go forward with an amendment on Rule 45, LCJ urges the Advisory Committee to include a provision requiring “prior judicial determination under Rule 43(a) that remote testimony is appropriate for that witness before a subpoena can be issue under Rule 45(c).” A proposal to amend Rule 26 to require pretrial disclosure whether a witness’s testimony “will be in person or remote” is not a cure for the problems created when subpoenas for remote trial testimony are issued before the court has determined if that remote testimony meets Rule 43(a)’s standards.

The public comment period on proposed changes to Rule 45(c) closed on February 16. The Advisory Committee is expected to decide next steps on the proposed amendment at its April meeting.

LCJ Urges Preserving Rule 43(a)’s “Compelling Circumstances” Requirement

Separately pending before the Advisory Committee on Civil Rules are possible changes to Rule 43, which governs the standards for allowing remote trial testimony. Under consideration – but not yet out for public comment – is the possible elimination of Rule 43(a)’s “compelling circumstances” test, which would change the standard to “good cause.” LCJ argues that the compelling circumstances standard is appropriate and should not be omitted or weakened.

LCJ’s Rules Suggestion contends that the current language in Rule 43(a) “strikes the right balance” for handling disputes over remote trial testimony and that any lessening of that standard would spawn unnecessary motion practice. LCJ highlights the potential impact on so-called APEX witnesses – any changes to the standard could have a broad effect on many witnesses and would especially intensify fights over APEX witnesses. Because the risks of unintended consequences are extremely high, the preference for in-court testimony should remain in place. Removal of the “compelling circumstances” requirement would reduce judicial discretion, alter litigation strategies, and increase motion practice.