Remote Testimony Change Would Raise Risk of Abuse, Gamesmanship

As the lingering impact of the pandemic continues to unfold in litigation practice, the Civil Rules Advisory Committee has turned its attention to one aspect that palpably changed the game—the use of remote testimony in trial.

In 2023, we wrote about courts becoming increasingly receptive to remote trial testimony under the existing rules. Since then, the committee proposed amendments to Federal Rules 43 and 45 that could turn this trend into the new standard.

If adopted, these changes would relax existing protections created by jurisdictional limits on courts’ subpoena power and could expose parties and witnesses to abuse and gamesmanship.

Current Doctrine

Rules 43 and 45 provide that courts may permit remote trial testimony. But those rules aren’t a license for courts to expand the scope of their subpoena authority, which has limited geographic reach. It is only allowed upon a “good cause” showing by the proponent.

After our 2023 article, proceedings generally reverted to their pre-pandemic status quo ante, with federal court decisions trending in favor of geographic limits governing in-person trial testimony.

The US Court of Appeals for the Ninth Circuit’s 2023 decision in In re Kirkland reflects the prevailing rule, holding that “despite changes in technology and professional norms, the rule governing the court’s subpoena power has not changed and does not except remote appearances from the geographical limitations on the power to compel a witness to appear and testify at trial.” Lower courts have followed suit, reinforcing that Rule 43(a) permits remote testimony only within the confines of Rule 45.

But in 2024, the Advisory Committee on Civil Rules established the Rule 43/45 Subcommittee to assess proposed amendments to these rules that could alter that balance.

Proposed Amendments

The Rule 43/45 Subcommittee has proposed two major changes to these rules that would transform current practice.

Rule 43: Shifting the burden? The subcommittee’s proposed changes to Rule 43 would shift the presumption governing remote testimony at trial. The burden of proof currently rests on the proponent to show “good cause” to permit remote trial testimony. The proposed amendment would reverse that burden, requiring the opponent to show “good cause” for why remote testimony should be precluded.

The proposed amendment also clarifies that prior deposition testimony alone can’t justify precluding remote testimony, favoring live remote testimony over deposition video for witnesses unable to attend trial in person. Under the proposed Rule 43(a), courts would be compelled to allow remote testimony unless good cause exists to preclude it. The amendments would also shift the presumption governing remote testimony at trial.

Rule 45: Nationwide court subpoena power? For Rule 45, the subcommittee’s proposed amendment states that “the place of attendance for remote testimony is the location where the person is commanded to appear in person.”

This would allow courts to compel remote testimony nationwide, which has been the case in Federal Claims Act actions for years, as long as the witness appears within 100 miles of where they live or work. By contrast, the current rule limits subpoenas to witnesses within a 100-mile radius of the court.

Larger Implications

Setting aside the proposed expansion of the court’s geographic powers that raise jurisdictional questions, an untethered use of remote trial testimony raises many concerns for courtrooms. Keeping in mind that depositions may also be remote, it is possible for a witness to never meet an opposing crossexaminer in person or be given a direct line to a jury.

Remote testimony may lend itself to manipulation. Video feeds can be generated by artificial intelligence or even deep-faked. Witnesses may receive off-camera signals or consult materials outside the court’s view. And lagging video feeds may allow testimony to reach the jury before objections are resolved.

As the Federal Rules adapt to technological change, procedural safeguards that traditionally govern trial witness testimony remain a counterweight for possible benefits of new technologies, such as efficiency and expediency. In-person testimony has been the gold standard for trial testimony for a reason—it provides an unvarnished opportunity for the fact finder to assess the credibility of the person before them under the watchful eyes of both judge and jury.

Practitioners should consider how these changes may affect witness preparation, trial strategy, and subpoena practice as courts navigate this new phase of technology-driven procedure.

Practical Next Steps

The proposed amendment to Rule 45(c) was approved for public comment by the Standing Committee in June 2025, a comment process that ended on Feb. 16. The Advisory Committee on Civil Rules considered this proposed amendment to Rule 45(c) and potential amendments to Rule 43 at its April 14 meeting. The Standing Committee is expected to continue evaluating the proposals at its June meeting.

As a practical matter, the proposed changes to Rule 45(c) would allow parties to subpoena witnesses located nationwide, including company witnesses and other fact witnesses who were traditionally afforded protections, that were previously outside of subpoena power.

Given the impact this would have, practitioners should actively monitor the status of these proposed rule changes and plan accordingly when negotiating case management orders, setting depositions, arguing discovery disputes, advising clients, and thinking through credibility safeguards in the lead up to trial.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Alan E. Rothman is a partner at Sidley Austin who has extensive experience on multi-district litigation, civil procedure, and jurisdictional issues.

Michelle A. Ramirez is a partner at Sidley Austin, focusing on the defense of companies in product liability and mass torts, commercial litigation and disputes, and class action litigation, including multi-district litigation.

Amanda L. Crawford-Steger is a partner at Sidley Austin, representing clients in product liability, toxic tort, and mass tort litigation, including in multi-district litigation and trial.

Interested in writing? Review our author guidelines, and submit pitches to Insights@bloombergindustry.com.