Episode 107 - Do Your Non-Party Subpoenas List the Remote Location as “Zoom Video?” You May Have a Problem.

If you're like most litigators, you now regularly issue subpoenas that command the deponent to appear “Via Zoom Videoconference,” or something similar. In this episode, Jim Garrity explains why doing that - rather than listing a physical location for the deposition - may render your subpoena fatally defective and unenforceable.SHOW NOTESOrder Denying Plaintiffs Motion to Compel General Dynamics’ Compliance with Subpoena, Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 53), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (denying motion to compel compliance with subpoena in part because subpoena failed to command attendance at a specified “place of compliance; instead, it merely listed the place as “VIA ZOOM VIDEO CONFERENCE”)Frobe v. UPMC St. Margaret, No. 2:20cv00957-CRE, 2021 U.S. Dist. LEXIS 129924, at *3 (W.D. Pa. July 13, 2021) (“ ‘Zoom Videoconferencing’ is not a ‘Place;’ rather, it is a method of taking the deposition;” court required subpoenaing party to modify subpoena to have place of deposition changed to within 100 miles of deponent's home or place of employment, whichever was more convenient to deponent)Russell v. Maman, No. 18-CV-06691-RS (AGT), 2021 WL 3212646, at *2 (N.D. Cal. July 29, 2021) (declining to enforce subpoena that listed place as “Via Zoom;’ court could not determine with certainty that it had jurisdiction because it could not tell from subpoena that it was the district where compliance with the subpoena was required)Opposition to Plaintiffs Motion to Compel General Dynamics Compliance with Subpoena, etc., Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 38), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (excellent memorandum in opposition to enforcement of subpoena that failed to specify “place” of deposition and instead listed the place as “VIA ZOOM VIDEO CONFERENCE”)CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017) (“Under Rule 45, then, the place of compliance must be a physical “place” subject to “geographical limits” and capable of being measured according to mileage;” provision of email address, where subpoenaed documents are to be produced, was insufficient)Fed. R. Civ. P. 45(c)(1)(A) (providing generally that place listed in subpoena for compliance must be within 100 miles of the witness’ residence, place of employment, or where the witness regularly transacts business)Fed. R. Civ. P. 45(a)(1)(A)(iii) (imposing requirement that subpoena state the specified time and place for compliance)**The following authorities were added after Episode 107 was aired:Chen v. Federal Bureau of Investigation, et al., No. 22-MC-0074 (CRC), 2022 WL 17851618, at *3 (D.D.C. Oct. 18, 2022) (rejecting argument that non-party remote deposition subpoena was unenforceable because it did not specify a physical location)Hawkins, et al. v. CUNA Mutual Group, etc., No. CIV-22-536-SLP, 2022 WL 19001967, at *2 (W.D. Okla. Nov. 21, 2022) (denying motion to quash Zoom deposition subpoena of Wisconsin lawyer, without prejudice to refile in Wisconsin, nothing that motion must be filed where deponent will testify if location is not in same district where action is pending)