Source: Bloomberg Law

The Civil Rules Advisory Committee’s Rule 43/45 Subcommittee has proposed amendments that would change how remote trial testimony is treated, potentially reversing the current presumption by placing the burden on an opponent to show “good cause” to preclude remote testimony rather than requiring the proponent to justify it. The draft would also clarify that prior deposition testimony alone cannot justify barring live remote testimony and would favor live remote appearances over deposition video when a witness cannot attend in person. The subcommittee’s Rule 45 proposal would treat “the place of attendance for remote testimony” as the location where the person is commanded to appear in person, a formulation that could enable courts to compel remote testimony nationwide and expand subpoena reach beyond the current 100‑mile limits.

Those proposed changes are set against existing case law, including the Ninth Circuit’s 2023 In re Kirkland holding that technological change does not remove geographic limits on subpoena power, which lower courts have followed. The article flags practical and integrity concerns if remote testimony becomes the default: witnesses might never meet opposing counsel in person, video feeds could be manipulated by AI or deepfakes, off‑camera coaching or consulting materials might occur, and lagging feeds could let testimony reach jurors before objections are resolved. The piece notes procedural milestones: a proposed Rule 45(c) amendment was approved for public comment by the Standing Committee in June 2025 (comment period ended Feb. 16), the Advisory Committee considered the proposals at its April 14 meeting, and the Standing Committee is expected to continue review at its June meeting. It concludes by advising practitioners to monitor the rulemaking and plan for impacts on case management orders, depositions, discovery disputes, client advice, and credibility safeguards.