Federal Rules of Civil Procedure

Subscribe to Federal Rules of Civil Procedure

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the Ninth Circuit has ruled that the 100-mile limitation under Rule 45(c) of the Federal Rules of Civil Procedure applies to remote testimony.

In In re John Kirkland, et al. v. USBC, Los Angeles, the petitioners, Mr. and Mrs. Kirkland who resided in California before relocating to the U.S. Virgin Islands, moved to quash subpoenas commanding them to testify via video conference at a trial before a bankruptcy court in the Central District of California. The bankruptcy court denied the motions finding that “good cause and compelling circumstances” existed to warrant the petitioners’ remote testimony pursuant to Rule 43(a), which provides that “[a]t trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise[; and f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The bankruptcy court also concluded that Rule 45(c)’s “place of compliance” should be based on where a witness is located as requiring a witness to testify remotely from the witness’s home is not contrary to the purpose of Rule 45(c), which is to protect witnesses from the burden of having to travel extensively to testify at a trial or other proceeding.

The United States District Court for the District of Massachusetts recently denied a motion by Philips North America seeking leave of the Court to amend its claims of patent infringement against Fitbit to include several additional products finding Philips did not act diligently. This case serves as a reminder of the importance of timeliness in any litigation, but especially when a party’s diligence is a factor the court must consider.

On March 30, the Supreme Court will hear arguments on whether a damages class action, is permitted by Article III of the Constitution or Rule 23 of the Federal Rules of Civil Procedure where the majority of the class has suffered no actual injury. Notably, this is the first time the Supreme Court will apply the rulings of Spokeo, which held that a plaintiff “cannot satisfy the demands of Article III by alleging a bare procedural violation,” to an entire class. The Supreme Court’s forthcoming decision will have significant implications on defenses to class actions, and could possibly expand liability for companies most often entangled in class actions with plaintiffs that have tenuous claims based only on statutorily created rights of action.

This past year has brought lots of change, including an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Rule 30(b)(6) governs the deposition of an organization (e.g., a corporation or a partnership) and requires, generally, that the notice of such a deposition set out with reasonable particularity the matters of examination.  The amended Rule 30(b)(6)—which  became effective on December 1, 2020—now requires that, “[b]efore or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” The amendment also requires that a subpoena notify a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.

On July 24, 2020, a panel of the Court of Appeals for the Federal Circuit issued splintered precedential opinions surrounding the interplay of state sovereign immunity under the Eleventh Amendment and required joinder of parties under Rule 19 of the Federal Rules of Civil Procedure in a patent-in-suit infringement case in Gensetix, Inc. v. Baylor College of Medicine, et al.

Discovery of relevant material extends far beyond documents created on personal computers. Discoverable data exists in many forms, including electronic data found in vehicles such as tractors used for tractor-trailers. This type of data is also subject to spoliation sanctions if not properly preserved. A recent case in the Northern District of Alabama, Barry v. Big M Transportation, Inc., addressed whether sanctions were warranted when electronic vehicle data was not preserved for a tractor-trailer that was involved in an accident.