In Re: John Kirkland v. Usbc, Los Angeles ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOHN C. KIRKLAND; No. 22-70092
POSHOW ANN KIRKLAND, as
Trustee of the Bright Conscience Trust B.C. No. 2:12-ap-
dated September 9, 2009. 02424-ER
______________________________
JOHN C. KIRKLAND; POSHOW
ANN KIRKLAND, as Trustee of the OPINION
Bright Conscience Trust dated
September 9, 2009,
Petitioners,
v.
UNITED STATES BANKRUPTCY
COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA (LOS
ANGELES),
Respondent,
JASON M. RUND, Chapter 7 Trustee,
Real Party in Interest.
Petition for a Writ of Mandamus
2 KIRKLAND V. USBC, LOS ANGELES
Argued and Submitted October 4, 2022
Pasadena, California
Filed July 27, 2023
Before: Danielle J. Forrest and Gabriel P. Sanchez, Circuit
Judges, and Nancy D. Freudenthal, * District Judge.
Opinion by Judge Forrest
SUMMARY **
Mandamus Petition / Civil Procedure
The panel granted a petition for a writ of mandamus and
ordered the United States Bankruptcy Court for the Central
District of California to quash trial subpoenas requiring
petitioners to testify via contemporaneous video
transmission from their home in the U.S. Virgin Islands.
The bankruptcy court ordered Poshow Ann Kirkland, a
party in her capacity as sole trustee for the Bright Conscience
Trust, and John Kirkland, a non-party witness, to testify at a
trial regarding claims brought against the Trust in an
adversary proceeding. The Kirklands moved to quash their
*
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KIRKLAND V. USBC, LOS ANGELES 3
trial subpoenas because they violated the geographic
limitations set forth in Federal Rule of Civil Procedure
45(c). The bankruptcy court denied the motion to quash on
the grounds that, under Rule 43(a), good cause and
compelling circumstances warranted ordering the Kirklands’
remote testimony.
Rule 45(c) provides that a person can be commanded to
attend a trial within 100 miles of where the person resides,
is employed, or regularly transacts business in person. Rule
45(c) further provides that a person can be commanded to
attend a trial within the state where the person resides, is
employed, or regularly transacts business in person if the
person is party or a party’s officer and would not incur
substantial expense. Rule 43(a) provides that testimony
must be taken in open court, but remote testimony may be
allowed for good cause in compelling circumstances and
with appropriate safeguards.
The panel held that the bankruptcy court erred in
refusing to quash the trial subpoenas because, under the plain
meaning of the text of the Rules, the geographic limitations
of Rule 45(c) apply even when a witness is permitted to
testify by contemporaneous video transmission. The panel
concluded that Rule 45(c) governs the court’s power to
require a witness to testify at trial and focuses on the location
of the proceeding, while Rule 43(a) governs the mechanics
of how trial testimony is presented.
Weighing the Bauman factors to determine whether
issuance of a writ of mandamus was appropriate, the panel
concluded that the third factor, clear error, weighed in favor
of granting mandamus relief. The panel concluded that the
fifth Bauman factor also weighed in favor because the
petition presented an important issue of first impression,
4 KIRKLAND V. USBC, LOS ANGELES
requiring the construction of a federal procedural rule in a
new context, given the recent proliferation of
videoconference technology in all types of judicial
proceedings. The panel held that the third and fifth Bauman
factors were sufficient on their own to warrant granting
mandamus relief in this case. The panel further concluded
that the first Bauman factor, the availability of alternate
means of relief, did not weigh heavily against granting
mandamus relief; the second factor, the likelihood of
irreparable harm, supported granting relief; and, because the
fifth factor strongly weighed in favor, it was not necessary
to analyze in depth the fourth factor, whether the case
involved an oft-repeated error.
COUNSEL
Steven S. Fleischman (argued), Peter K. Batalden, and Jason
R. Litt, Horvitz & Levy LLP, Burbank, California; Lewis R.
Landau, Law Office of L. Landau, Calabasas, California;
Stephen E. Hyam, Hyam Law APC, Granada Hills,
California; for Petitioners.
Corey R. Weber (argued), Ryan F. Coy, and Steven T.
Gubner, BG Law LLP, Woodland Hills, California, for Real
Party in Interest Jason M. Rund, Chapter 7 Trustee.
KIRKLAND V. USBC, LOS ANGELES 5
OPINION
FORREST, Circuit Judge:
Petitioners John and Poshow Ann Kirkland moved to
quash trial subpoenas issued by the United States
Bankruptcy Court for the Central District of California,
requiring them to testify via contemporaneous video
transmission from their home in the U.S. Virgin Islands. The
bankruptcy court denied their motions, and the Kirklands
seek mandamus relief from this court. The Kirklands argue
that Federal Rule of Civil Procedure 45(c)(1) prohibits the
bankruptcy court from compelling them to testify, even
remotely, where they reside out of state over 100 miles from
the location of the trial. Mindful of the “extraordinary
nature” of mandamus relief, In re Williams-Sonoma, Inc.,
947 F.3d 535, 538 (9th Cir. 2020), we conclude that it is
warranted here as the Kirklands present a novel issue
involving the interplay of two Federal Rules of Civil
Procedure that has divided district courts across the country
and that is likely to have significant continued relevance in
the wake of technological advancements and professional
norms changing how judicial proceedings are conducted.
Moreover, because the scope of the court’s subpoena power
is a collateral matter, this issue is likely to evade direct
appellate review. See Perry v. Schwarzenegger, 591 F.3d
1147, 1158–59 (9th Cir. 2010). Therefore, we grant the
Kirklands’ mandamus petition and order the bankruptcy
court to quash their trial subpoenas.
I. BACKGROUND
The underlying litigation has a lengthy and complex
history. We summarize only those facts relevant to the
Kirklands’ mandamus petition.
6 KIRKLAND V. USBC, LOS ANGELES
A. EPD Investments’ Bankruptcy
The Kirklands are a married couple. Between 2007 and
2009, Mr. Kirkland invested in EPD Investments (EPD) by
making a series of loans to this entity (EPD Loans). The
negotiations for the EPD Loans occurred in California where
the Kirklands lived at the time. In September 2009, the
Kirklands created the Bright Conscience Trust (BC Trust)
for their minor children, and Mr. Kirkland assigned the EPD
Loans to BC Trust. Mrs. Kirkland is the sole trustee for BC
Trust. Also in 2009, Mr. Kirkland began serving as EPD’s
lawyer.
In December 2010, EPD’s creditors forced it into
involuntary Chapter 7 bankruptcy. Mr. Kirkland initially
represented EPD in the bankruptcy proceedings. BC Trust
filed proofs of claim in EPD’s bankruptcy case based on the
EPD Loans; Mr. Kirkland did not file an individual proof of
claim.
The bankruptcy court appointed a Chapter 7 trustee. In
October 2012, the trustee initiated the adversary proceeding
underlying this petition against Mr. Kirkland and BC Trust
in the United States Bankruptcy Court for the Central
District of California. Four years later, the trustee filed the
operative fourth amended complaint, seeking to disallow or
equitably subordinate BC Trust’s proofs of claim and to
avoid allegedly fraudulent transfers that EPD made to Mr.
Kirkland and BC Trust in the form of mortgage payments on
the Kirklands’ home. Specifically, the trustee alleged that
EPD was a Ponzi scheme and that Mr. Kirkland, while acting
as its outside counsel, was aware of and engaged in
inequitable conduct to hide the company’s insolvency. The
trustee further alleged that Mr. Kirkland’s misconduct
should be imputed to BC Trust and the trust’s proofs of claim
KIRKLAND V. USBC, LOS ANGELES 7
disallowed or subordinated because BC Trust did not
separately invest in EPD and was merely the assignee of Mr.
Kirkland’s interests in EPD. By 2014, the Kirklands had
moved to the U.S. Virgin Islands. Nonetheless, they agreed
to be deposed in Los Angeles in June 2017.
After Mr. Kirkland asserted his right to a jury trial on the
fraudulent-transfer claims asserted against him, the district
court withdrew the reference of the entire adversary
proceeding from the bankruptcy court because of the
commonality and overlap between the claims asserted
against Mr. Kirkland and BC Trust. In re EPD Inv. Co., 594
B.R. 423, 426 (C.D. Cal. 2018). The district court then
bifurcated for trial the fraudulent-transfer claims against
Mr. Kirkland from the other claims asserted against BC
Trust. The Kirklands both testified in person at
Mr. Kirkland’s fraudulent-transfer trial held in California,
and the jury returned a verdict in his favor.
Afterwards, the district court dismissed the trustee’s
equitable-subordination claim against Mr. Kirkland and
returned the claims against BC Trust to the bankruptcy court.
The district court explained that the bankruptcy court could
rely on the testimony provided during the jury trial in
adjudicating the claims against BC Trust but “[i]f the
[b]ankruptcy [c]ourt determines that it needs substantial
testimony from non-parties that would not be necessary if
this [c]ourt were to try the matter . . ., the parties may seek
reconsideration of [the return] on that ground.” In the
proceedings against BC Trust, Mrs. Kirkland is a party in her
capacity as sole trustee and Mr. Kirkland is a non-party
witness.
8 KIRKLAND V. USBC, LOS ANGELES
B. The Kirklands’ Trial Subpoenas
The bankruptcy court determined that it was necessary
for the Kirklands to testify at BC Trust’s trial, and it
authorized the trustee to serve the Kirklands with trial
subpoenas by certified mail and publication commanding
them to testify remotely via video transmission from the U.S.
Virgin Islands. The Kirklands each moved to quash their trial
subpoenas, primarily arguing that they violated Federal Rule
of Civil Procedure 45(c)’s geographic limitations.
The bankruptcy court denied the Kirklands’ motions to
quash, concluding that “good cause and compelling
circumstances” warranted requiring their testimony “by way
of contemporaneous video transmission” under Federal Rule
of Civil Procedure 43(a). The bankruptcy court analyzed the
split among district courts regarding “whether Civil Rule
45’s geographical restriction applies if a witness is permitted
to testify by videoconference from a location chosen by the
witness.” 1 The bankruptcy court recognized that it could not
compel the Kirklands to attend the trial in person because
they now live in the Virgin Islands. And it reasoned that
“[w]here a witness has been ordered to provide remote video
1
There appear to be three different approaches regarding whether a
witness may be compelled to testify remotely from a location that is
beyond Rule 45(c)’s 100-mile geographic limitation. See, e.g., Off.
Comm. of Unsecured Creditors v. CalPERS Corp. Partners LLC, 2021
WL 3081880, at *2 (D. Me. July 20, 2021) (listing cases). First, some
courts have held that Rule 45(c)’s geographic limitation is firm, and Rule
43(a) cannot be an end-run around it. Id. Second, some courts have held
that an order requiring remote appearance under Rule 43(a)
automatically satisfies Rule 45(c)’s geographical limitation because it
does not compel the witness to travel more than 100 miles. Id. And third,
some courts have held that Rule 43(a) may be used to compel remote
testimony from a location within 100 miles of the witness’s residence,
but only upon a showing of good cause in compelling circumstances. Id.KIRKLAND V. USBC, LOS ANGELES 9
testimony transmitted from the witness’s home (or another
location chosen by the witness)” under Rule 45(c), “that
witness has not been compelled to attend a trial located more
than 100 miles from the witness’s residence.” Thus, the
bankruptcy court found that the challenged subpoenas
satisfied Rule 45(c) because “the purpose of [Rule 45] is to
protect witnesses from the burden of extensive travel.”
The bankruptcy court heavily relied on its prior ruling
granting the trustee’s motion in limine to exclude transcripts
of the Kirklands’ depositions and testimony given in Mr.
Kirkland’s trial. BC Trust had informed the bankruptcy court
that it intended to introduce these transcripts because the
Kirklands were unwilling to travel to California to testify at
BC Trust’s trial and they could not be compelled to testify
because they live more than 100 miles from the bankruptcy
court. BC Trust argued that the Kirklands were
“unavailable” under Federal Rule of Evidence 804, and the
transcripts of their prior testimony were therefore admissible
hearsay. The bankruptcy court disagreed that a hearsay
exception applied because it concluded that the Kirklands’
“unavailability . . . has been engineered by the BC Trust for
purely strategic purposes.”
The bankruptcy court also reasoned that “the prior
transcripts would be insufficient because certain testimony
relevant to the equitable subordination claim was not
introduced” at Mr. Kirkland’s trial, and additional testimony
was necessary. Additionally, in determining whether BC
Trust engaged in any inequitable conduct, the bankruptcy
court concluded that it needs to “assess the credibility of [the
Kirklands], which [it] cannot do based solely on transcripts.”
After the bankruptcy court made its in limine ruling, the
Kirklands moved the district court to reconsider its return
10 KIRKLAND V. USBC, LOS ANGELES
order and withdraw reference to the bankruptcy court. The
district court denied the Kirklands’ motion, explaining that
in returning the proceedings to the bankruptcy court, it did
not mandate that the bankruptcy court rely only on prior
testimony and explicitly acknowledged that additional
testimony may be needed in adjudicating the claims against
BC Trust. The district court further directed that if the
Kirklands failed to attend trial, the bankruptcy court would
be “entitled to make whatever adverse findings it sees fit.”
Lastly, the bankruptcy court detailed its positive
experience with witnesses appearing remotely at
proceedings conducted during the COVID-19 pandemic.
The bankruptcy court explained that, in its view, remote
testimony is an adequate substitute for in-person testimony
because with technological advancements “there is little
practical difference between in-person testimony and
testimony via videoconference.” For all these reasons, the
bankruptcy court concluded that “good cause and
compelling circumstances” warranted ordering the
Kirklands to testify remotely.
C. The Kirklands’ Attempted Appeal
After the bankruptcy court refused to quash the trial
subpoenas, the Kirklands moved the bankruptcy court to
certify an immediate interlocutory appeal to this court under
28 U.S.C. § 158(d)(2), or to the district court under
§ 158(a)(3). The bankruptcy court also denied this motion.
The bankruptcy court concluded that the circumstances did
not “justify an interlocutory appeal that would result in yet
more delay.” The bankruptcy court acknowledged that there
was no controlling authority establishing that Rule 45
applies to remote testimony, but it nonetheless determined
that the utility of certifying an interlocutory appeal was
KIRKLAND V. USBC, LOS ANGELES 11
outweighed by the “need to finally bring this litigation to an
end.” The bankruptcy court also reasoned that certification
was inappropriate because its denial of the Kirklands’
motions to quash was based on factual findings related to its
“compelling circumstances” and “good cause” analysis, not
just legal conclusions.
The bankruptcy court denied the Kirklands’ alternative
request for leave to file an interlocutory appeal in the district
court as “highly unusual” where the district court’s decision
would not be binding beyond the subject case and one of the
main purposes of certification is to produce binding
authority on unresolved questions of law. The Kirklands did
not seek leave from the district court or the Ninth Circuit
Bankruptcy Appellate Panel (BAP) to pursue an
interlocutory appeal in either of those forums, as allowed
under 28 U.S.C. § 158(a)(3), (b)(1).
D. Petition for a Writ of Mandamus
In May 2022, the Kirklands petitioned this court for a
writ of mandamus directing the bankruptcy court to quash
their trial subpoenas. 2 They argue that Rule 45(c) limits the
subpoena power over both parties and non-parties who
reside within 100 miles of the trial location unless they are
employed or regularly transact business in the state where
the trial occurs. The Kirklands contend that the bankruptcy
court erred by relying on Rule 43(a) in ordering them to
testify remotely because “Rule 43(a) governs the mechanical
question of taking testimony, not the substantive question of
which witnesses may be compelled to testify.” They argue
that whether remote testimony is permissible under Rule
2
The bankruptcy proceeding is stayed pending our determination of the
Kirklands’ petition.
12 KIRKLAND V. USBC, LOS ANGELES
43(a) “is entirely irrelevant to whether a party can be
compelled to comply with a subpoena under Rule 45(c).”
The trustee, as the real party in interest, opposes the
Kirklands’ petition. The trustee argues that the bankruptcy
court’s order does not raise a purely legal issue regarding the
scope of the subpoena power under Rule 45(c), as the
Kirklands contend, but instead is based on a factual finding
of “good cause in compelling circumstances” under Rule
43(a). The trustee also argues that although no court of
appeals “has considered the interplay between Rule 43(a)
and Rule 45(c),” any such interplay is immaterial and
mandamus relief is unwarranted because the advisory
committee’s notes to Rule 45 make clear that when remote
testimony is authorized under Rule 43(a), “the witness can
be commanded to testify from any place described in Rule
45(c)(1).”
We invited the bankruptcy court to respond to the
Kirklands’ mandamus petition, and it explained that it
denied leave for the Kirklands to file a direct appeal because
of the already long extended proceedings. But the
bankruptcy court acknowledged that it would be appropriate
for us “to exercise supervisory mandamus jurisdiction to
resolve the undecided question of whether Civil Rule 45’s
geographical restriction applies where a witness is ordered
to testify by means of remote video transmission from a
location selected by the witness.” For the same reasons that
it articulated in denying the Kirklands’ motions to quash, the
bankruptcy court urged us to find that Rule 45’s
geographical limitations do not apply here. Pointing to a
survey of bankruptcy attorneys and a working group
convened by the Judicial Council of California, the
bankruptcy court highlights that “the litigation landscape has
permanently shifted towards the greater use of
KIRKLAND V. USBC, LOS ANGELES 13
videoconference technology” and that witnesses, court staff,
attorneys, and judges have had positive experiences with
remote testimony in court proceedings.
II. DISCUSSION
Under the All Writs Act, we have authority to issue writs
of mandamus to lower courts. 28 U.S.C. § 1651(a); see
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004).
This authority “extends to those cases which are within [our]
appellate jurisdiction although no appeal has been
perfected.” FTC v. Dean Foods Co., 384 U.S. 597, 603
(1966) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S.
21, 25 (1943)). While writs of mandamus are most often
issued to district courts, bankruptcy courts “constitute a unit
of the district court,” 28 U.S.C. § 151, and we hear appeals
from bankruptcy courts through several avenues. See 28
U.S.C. § 158(d). Therefore, structurally, our mandamus
jurisdiction over bankruptcy courts mirrors our mandamus
authority over district courts, and we can issue writs of
mandamus directly to bankruptcy courts because they are
courts within our appellate jurisdiction.
Mandamus is an “extraordinary remedy” appropriate
only in “exceptional circumstances amounting to a judicial
usurpation of power” or a “clear abuse of discretion.”
Cheney, 542 U.S. at 380 (internal quotation marks and
citations omitted). In determining whether issuance of a writ
of mandamus is appropriate, we weigh the five Bauman
factors:
(1) The party seeking the writ has no other
adequate means, such as a direct appeal, to
attain the relief he or she desires. (2) The
petitioner will be damaged or prejudiced in a
14 KIRKLAND V. USBC, LOS ANGELES
way not correctable on appeal. (This
guideline is closely related to the first.) (3)
The district court’s order is clearly erroneous
as a matter of law. (4) The district court’s
order is an oft-repeated error, or manifests a
persistent disregard of the federal rules. (5)
The district court’s order raises new and
important problems, or issues of law of first
impression.
In re Mersho, 6 F.4th 891, 897–98 (9th Cir. 2021) (quoting
Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir.
1977)). This is not a mechanical analysis; we weigh the
factors holistically “to determine whether, on balance, they
justify the invocation of ‘this extraordinary remedy.’” In re
Sussex, 781 F.3d 1065, 1071 (9th Cir. 2015) (citation
omitted). Moreover, issuance of mandamus relief is
discretionary; we are “neither compelled to grant the writ
when all five factors are present, nor prohibited from doing
so when fewer than five, or only one, are present.” Id.; see
also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for
Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir.
2005) (“[I]ndeed, the fourth and fifth will rarely be present
at the same time.”). But absence of clear error as a matter of
law is dispositive and “will always defeat a petition for
mandamus.” See In re Williams-Sonoma, 947 F.3d at 538
(citation omitted).
Mandamus relief can be appropriate to resolve novel and
important procedural issues. For example, in Schlagenhauf
v. Holder, the Supreme Court granted mandamus relief
where the petitioner asserted that a district court order
requiring a party to undergo a mental and physical
examination exceeded the district court’s authority and “the
KIRKLAND V. USBC, LOS ANGELES 15
challenged order . . . appear[ed] to be the first of its kind in
any reported decision in the federal courts under [the
governing Federal Rule of Civil Procedure].” 379 U.S. 104,
110 (1964). We likewise have exercised mandamus
authority to address “particularly important questions of first
impression” regarding discovery, evidentiary, and other
procedural issues. Perry, 591 F.3d at 1157 (listing cases);
see also In re U.S. Dep’t of Educ., 25 F.4th 692, 705–06 (9th
Cir. 2022) (issuing writ of mandamus to quash deposition
subpoena); Mondor v. U.S. Dist. Ct. for Cent. Dist. of Cal.,
910 F.2d 585, 586–87 (9th Cir. 1990) (issuing writ of
mandamus where district court’s denial of petitioner’s
demand for a jury trial upon removal was inconsistent with
the governing Federal Rule of Civil Procedure). Indeed,
“[m]andamus is particularly appropriate when we are called
upon to determine the construction of a federal procedural
rule in a new context.” Valenzuela-Gonzalez v. U.S. Dist. Ct.
for Dist. of Ariz., 915 F.2d. 1276, 1279 (9th Cir. 1990).
Therefore, “[a]lthough ‘the courts of appeals cannot afford
to become involved with the daily details of discovery [or
trial],’ we may rely on mandamus to resolve ‘new questions
that otherwise might elude appellate review . . . .’” Perry,
591 F.3d at 1157 (citation omitted).
A. Error
We start with the third Bauman factor because
satisfaction of this factor “is almost always a necessary
predicate for the granting of the writ.” In re U.S. Dep’t of
Educ., 25 F.4th at 698. The clear-error standard is highly
deferential and typically requires prior authority from this
court that prohibits the lower court’s action. In re Williams-
Sonoma, 947 F.3d at 538. However, this standard is met even
without controlling precedent “if the ‘plain text of the statute
prohibits the course taken by the district court.’” In re
16 KIRKLAND V. USBC, LOS ANGELES
Mersho, 6 F.4th at 898 (quoting Cohen v. U.S. Dist. Ct. for
N. Dist. of Cal., 586 F.3d 703, 710 (9th Cir. 2009)); see also
In re U.S. Dep’t of Educ., 25 F.4th at 698. We must be left
with “a firm conviction that the [lower] court misinterpreted
the law . . . or committed a clear abuse of discretion.” In re
Walsh, 15 F.4th 1005, 1009 (9th Cir. 2021) (second
alteration in original) (internal quotation marks and citation
omitted); Valenzuela-Gonzalez, 915 F.2d at 1279. We have
also stated that “[w]here a petition for mandamus raises an
important issue of first impression, . . . a petitioner need
show only ‘ordinary (as opposed to clear) error.’” Barnes v.
Sea Haw. Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018)
(citation omitted); see also Perry, 591 F.3d at 1158–59; In
re Cement Antitrust Litig., 688 F.2d 1297, 1305–07 (9th Cir.
1982). We do not take the opportunity to address the
difference between clear error and ordinary error here
because we conclude that mandamus relief is warranted
under either standard.
The issue raised by the Kirklands is narrow: whether
Federal Rule of Civil Procedure 45(c)’s 100-mile limitation
applies when a witness is permitted to testify by
contemporaneous video transmission. As with a statute, we
begin with the text and “give the Federal Rules of Civil
Procedure their plain meaning.” Bus. Guides, Inc. v.
Chromatic Commc’ns Enters., 498 U.S. 533, 540 (1991)
(citation omitted). If “the language at issue has a plain and
unambiguous meaning with regard to the particular dispute
in the case” our inquiry ceases. Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002) (citation omitted). And while
the Supreme Court has instructed that “[t]he Federal Rules
of Civil Procedure should be liberally construed,” it has also
cautioned that “they should not be expanded by disregarding
KIRKLAND V. USBC, LOS ANGELES 17
plainly expressed limitations.” Schlagenhauf, 379 U.S. at
121.
Federal Rule of Civil Procedure 45(c) defines the “place
of compliance” for subpoenas and the geographical scope of
a federal court’s power to compel a witness to testify at a
trial or other proceeding. 3 There are two metrics. First, a
person can be commanded to attend trial “within 100 miles
of where the person resides, is employed, or regularly
transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A).
Second, a person can be commanded to attend a trial “within
the state where the person resides, is employed, or regularly
transacts business in person, if the person (i) is a party or a
party’s officer; or (ii) . . . would not incur substantial
expense.” Fed. R. Civ. P. 45(c)(1)(B). If a trial subpoena
exceeds these geographical limitations, the district court
“must quash or modify” the subpoena. Fed. R. Civ. P.
45(d)(3)(A)(ii) (emphasis added).
Here, the trustee subpoenaed the Kirklands to testify at a
trial in California where it is undisputed the Kirklands no
longer live, work, or regularly conduct in-person business.
Therefore, we focus on the first metric—Rule 45(c)(1)(A)’s
100-mile limitation. For in-person attendance, the plain
meaning of this rule is clear: a person cannot be required to
attend a trial or hearing that is located more than 100 miles
from their residence, place of employment, or where they
regularly conduct in-person business. The Federal Rules of
Bankruptcy Procedure incorporate this same limitation:
“Although [Bankruptcy] Rule 7004(d) authorizes
nationwide service of process, [Federal Rule of Civil
Procedure 45] limits the subpoena power to the judicial
3
Rule 45 applies to subpoenas in bankruptcy proceedings. Fed. R. Bankr.
P. 9016.
18 KIRKLAND V. USBC, LOS ANGELES
district and places outside the district which are within 100
miles of the place of trial or hearing.” Fed. R. Bankr. P. 9016
advisory committee’s note to 1983 amendment (emphasis
added). Thus, we have no difficulty concluding that the
Kirklands could not be compelled to testify in person at a
trial in California. The question here is how Rule 45(c)
applies when a person is commanded to testify at trial
remotely.
The trustee argues that Federal Rule of Civil Procedure
43(a) avoids Rule 45(c)’s 100-mile limitation as applied to
remote testimony. Specifically, the trustee (and the
bankruptcy court) assert that remote testimony moves the
“place of compliance” under Rule 45(c) from the courthouse
to wherever the witness is located, so long as that location is
within 100 miles of the witness’s home or place of business.
Federal Rule of Civil Procedure 43, titled “Taking
Testimony,” provides that “testimony must be taken in open
court” unless a federal statute or rule provides otherwise.
Fed. R. Civ. P. 43(a). But it permits courts to allow remote
testimony “[f]or good cause in compelling circumstances
and with appropriate safeguards.” Id.
On its face, Rule 43(a) does not address the scope of a
court’s power to compel a witness to testify or reveal any
overlap with Rule 45. Rather, Rule 43(a) establishes how a
witness must provide testimony at trial: “in open court”
unless the law allows otherwise or there is sufficient basis
for allowing remote testimony. Id. Stated another way, Rule
45(c) governs the court’s power to require a witness to testify
at trial, and Rule 43(a) governs the mechanics of how trial
testimony is presented. And logically, determining the limits
of the court’s power to compel testimony precedes any
determination about the mechanics of how such testimony is
presented.
KIRKLAND V. USBC, LOS ANGELES 19
The trustee argues that the advisory committee’s notes
indicate that there is interplay between Rules 43 and 45 and
that courts have the power to compel remote testimony
beyond Rule 45(c)’s 100-mile limitation. We may look to
the advisory committee’s notes because they “provide a
reliable source of insight into the meaning of a rule.” United
States v. Vonn, 535 U.S. 55, 64 n.6 (2002); see also Tome v.
United States, 513 U.S. 150, 167 (1995) (Scalia, J.,
concurring) (recognizing the advisory committee’s notes are
“the most persuasive” authority on the meaning of the
Federal Rules of Civil Procedure as “they display the
‘purpose,’ or ‘intent,’ of the draftsmen” (cleaned up)).
Indeed, we considered the advisory committee’s notes in
interpreting the “undue burden or expense” clause in Rule
45(c)(1). See Mount Hope Church v. Bash Back, 705 F.3d
418, 425, 427–28 (9th Cir. 2012). However, it is the text of
the rules that control, and “the [n]otes cannot . . . change the
meaning that the Rules would otherwise bear.” Tome, 513
U.S. at 168 (Scalia, J., concurring); see also United States v.
Bainbridge, 746 F.3d 943, 947 (9th Cir. 2014).
The only express reference to interplay between Rules
43(a) and 45(c) is in the notes to Rule 45, which state: “When
an order under Rule 43(a) authorizes testimony from a
remote location, the witness can be commanded to testify
from any place described in Rule 45(c)(1).” Fed. R. Civ. P.
45 advisory committee’s note to 2013 amendment. This note
does not do the work that the trustee contends it does. The
places described in Rule 45(c)(1) are “a trial, hearing, or
deposition” that are located within prescribed geographical
proximity to where the witness lives, works, or conducts in-
person business. Fed. R. Civ. P. 45(c)(1). The note does not
state that Rule 43(a) changes the “place described in Rule
45(c)(1)” from the location of the proceedings to the location
20 KIRKLAND V. USBC, LOS ANGELES
of the witness. And even if it did, it would not control
because it would be contrary to the text of Rule 45(c)(1).
Tome, 513 U.S. at 168 (Scalia, J., concurring); Bainbridge,
746 F.3d at 947. The note clarifies that Rule 45(c)’s
geographical limitations apply even when remote testimony
is allowed, and a witness is not required “to attend” a trial or
other proceedings in the traditional manner.
The advisory committee’s notes to Rule 43 reinforce this
conclusion by explaining that remote testimony is the
exception, and live, in-person testimony is strongly
preferred. See Fed. R Civ. P. 43(a) advisory committee’s
note to 1996 amendment. These notes state: “The
importance of presenting live testimony in court cannot be
forgotten. The very ceremony of trial and the presence of the
factfinder may exert a powerful force for truthtelling.” Id.(emphasis added); see also Draper v. Rosario, 836 F.3d
1072, 1081–82 (9th Cir. 2016) (holding the district court
properly disallowed remote video testimony under Rule 43
given the importance of “live testimony in court” (citing Fed.
R Civ. P. 43(a) advisory committee’s note to 1996
amendment)). These notes further instruct that “[t]he most
persuasive showings of good cause and compelling
circumstances [justifying remote testimony] are likely to
arise when a witness is unable to attend trial for unexpected
reasons, such as accident or illness, but remains able to
testify from a different place.” Fed. R Civ. P. 43(a) advisory
committee’s note to 1996 amendment. “A party who could
reasonably foresee the circumstances offered to justify
transmission of testimony will have special difficulty in
showing good cause and the compelling nature of the
circumstances.” Id. The strong preference for in-person
testimony would be greatly undermined if the rules were
interpreted to impose fewer limits on a court’s power to
KIRKLAND V. USBC, LOS ANGELES 21
compel remote testimony than on its power to compel in-
person testimony.
Federal Rule of Civil Procedure 32(a)(4) also supports
the conclusion that the Kirklands fall outside the bankruptcy
court’s subpoena power because it defines witnesses who are
“more than 100 miles from the place of . . . trial” as
“unavailable.” Again, there is no indication in this rule that
the geographical limitation can be recalibrated under Rule
43(a) to the location of a remote witness rather than the
location of trial, nor is there any indication that courts can
avoid the consequences of a witness’s unavailability by
ordering remote testimony. The fact remains that all
witnesses—even those appearing remotely—must be
compelled to appear, and a court can only compel witnesses
who are within the scope of its subpoena power. Rule 43
does not give courts broader power to compel remote
testimony; it gives courts discretion to allow a witness
otherwise within the scope of its authority to appear
remotely if the requirements of Rule 43(a) are satisfied. That
is, neither the text of the rules nor the advisory committee’s
notes establish that the 100-mile limitation is inapplicable to
remote testimony or that the “place of compliance” under
Rule 45 changes the location of the trial or other proceeding
to where the witness is located when a witness is allowed to
testify remotely.
No doubt there is intuitive appeal to the trustee’s
argument and bankruptcy court’s view that the “place of
compliance” under Rule 45(c) should be based on where the
witness is located given that a primary concern underlying
the Rule’s geographical limitations is unfairly burdening
witnesses with travel, see generally Fed. R. Civ. P. 45(c)
advisory committee’s notes to 1991 and 2013 amendments,
but grafting this interpretation onto Rule 45(c) is unfounded
22 KIRKLAND V. USBC, LOS ANGELES
for several reasons. First, it would essentially render Rule
45(d)(3)(A)(ii)—the requirement that courts quash
subpoenas that reach “beyond the geographical limits
specified in Rule 45(c)”—a nullity as related to remote
testimony. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(“It is ‘a cardinal principle of statutory construction’ that ‘a
statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’” (citations omitted)).
Rule 45(d)(3)(A)(ii) plainly instructs that courts must “quash
or modify” subpoenas that exceed Rule 45(c)’s
“geographical limits,” reinforcing the conclusion that these
limits define the scope of a court’s power to compel a
witness to participate in a proceeding, see Hill v. Homeward
Residential, 799 F.3d 544, 553 (6th Cir. 2015) (concluding
Rule 45 and its “geographic limitations” should be
interpreted and enforced “as written”).
Second, interpreting “place of compliance” as the
witness’s location when the witness testifies remotely is
contrary to Rule 45(c)’s plain language that trial subpoenas
command a witness to “attend a trial.” Fed. R. Civ. P.
45(c)(1) (emphasis added). A trial is a specific event that
occurs in a specific place: where the court is located. See
Fed. R. Civ. P. 77(b) (“Every trial on the merits must be
conducted in open court and, so far as convenient, in a
regular courtroom.”). No matter where the witness is
located, how the witness “appears,” or even the location of
the other participants, trials occur in a court. 4 This concept
4
It is nonsensical to say that a trial is occurring in a witness’s living room
when a witness is allowed to appear “by contemporaneous transmission”
but that a trial is occurring in a courtroom the rest of the time. See Fed.
R. Civ. P. 43(a).
KIRKLAND V. USBC, LOS ANGELES 23
is expressed in Rule 43(a)’s requirement that witnesses—
even remote witnesses—must provide their testimony “in
open court.” Id. For this reason, application of Rule 45(c)’s
100-mile limitation to both trial and deposition subpoenas is
not internally inconsistent because unlike trials, there is no
ordinary or mandated location for depositions. The “place of
compliance” for a deposition subpoena can be any
appropriate location “within 100 miles of where the
[witness] resides . . . .” Fed. R. Civ. P. 45(c)(1)(A). 5
Perhaps one could argue that the “place” of trial, like
other proceedings, is changing with modern technology. But
we “generally seek[] to discern and apply the ordinary
meaning of [a text] at the time of [its] adoption,” BP P.L.C.
v. Mayor and City Council of Balt., 141 S. Ct. 1532, 1537
(2021), and there is no indication that Rule 45’s reference to
attending “a trial” was intended to refer to anything other
than the location of the court conducting the trial. Cf.
Valenzuela-Gonzalez, 915 F.2d at 1281 (“Absent a
determination by Congress that closed circuit television may
satisfy the presence requirement of the [criminal] rules, we
are not free to ignore the clear instructions of [the] Rules.”).
Indeed, the advisory committee reinforced the importance of
focusing on the location of the proceeding in discussing the
2013 amendment to Rule 45 that resolved a split in authority
about whether a party (as opposed to a non-party) who
resided more than 100 miles from where the trial was held
could be compelled to testify: “These changes resolve a
conflict that arose after the 1991 amendment about a court’s
5
See also Fed. R. Civ. P. 45(c)(2) (providing that “[a] subpoena may
command . . . production of documents . . . or tangible things at a place
within 100 miles of” the person’s residence or place of business
(emphasis added)).
24 KIRKLAND V. USBC, LOS ANGELES
authority to compel a party or party officer to travel long
distances to testify at trial; such testimony may now be
required only as specified in new Rule 45(c).”
Third, if the “place of compliance” for a trial subpoena
could change from the courthouse to the witness’s location,
there would be no reason to consider a long-distance witness
“unavailable” or for the rules to provide an alternative means
for presenting evidence from long-distance witnesses that
are not subject to the court’s subpoena power. Courts could
simply find, as the bankruptcy court did here, that live
testimony from a witness located outside the geographical
limitations of Rule 45 was nonetheless necessary, which
constitutes “good cause in compelling circumstances” to
justify compelling their remote testimony. Fed. R. Civ. P.
43(a).
Here, the trustee moved in limine to prevent BC Trust
from introducing transcripts of the Kirklands’ prior sworn
testimony at trial as inadmissible hearsay. BC Trust argued
that the transcripts were admissible because the Kirklands
are not subject to the bankruptcy court’s subpoena power
and are therefore “unavailable” under Federal Rule of
Evidence 804(a)(5). The bankruptcy court concluded that the
transcripts were inadmissible because the Kirklands’
unavailability was “engineered by the BC Trust for purely
strategic purposes.” See Fed. R. Civ. P. 32(a)(4)(B) (a
witness’s deposition transcript may not be used at trial if “the
witness’s absence was procured by the party offering the
deposition”); Fed. R. Evid. 804(a) (a prior sworn statement
of an unavailable witness is not admissible “if the
statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying”). We need not
address the validity of this evidentiary ruling because it is
KIRKLAND V. USBC, LOS ANGELES 25
immaterial to the question before us regarding the
bankruptcy court’s subpoena power. Whether or not the
Kirklands are properly considered “unavailable” for
evidentiary purposes, it is undisputed that they reside and
work more than 100 miles from the bankruptcy court
conducting the subject trial.
In sum, accepting the trustee’s and bankruptcy court’s
reasoning in this case would stretch the federal subpoena
power well beyond the bounds of Rule 45, which focuses on
the location of the proceeding in which a witness is
compelled to testify.
Before the proliferation of videoconference technology,
Rule 45’s strict geographical limitation was simple: if a
witness was located further from the courthouse than Rule
45 proscribes, the witness could not be compelled to testify
at trial. See, e.g., Hangarter v. Provident Life & Accident Ins.
Co., 373 F.3d 998, 1019 (9th Cir. 2004) (recognizing that a
witness who lived more than 100 miles from the court was
“outside of the court’s subpoena power” and therefore
“unavailable” under Federal Rule of Civil Procedure 32 and
Federal Rule of Evidence 804); McGill v. Duckworth, 944
F.2d 344, 353–54 (7th Cir. 1991) (noting that the court’s
subpoena power to compel trial witnesses is “limited to its
district and a 100-mile radius around the courthouse,” and
that a court does not have any “‘inherent powers’ to compel
the attendance of a witness who is outside the court’s
subpoena power”), overruled on other grounds by Farmer v.
Brennan, 511 U.S. 825 (1994); In re Guthrie, 733 F.2d 634,
637 (4th Cir. 1984) (“[A] nonparty witness outside the state
in which the district court sits, and not within the 100-mile
bulge, may not be compelled to attend a hearing or trial, and
the only remedy available to litigants, if the witness will not
attend voluntarily, is to take his deposition . . . .”); Jaynes v.
26 KIRKLAND V. USBC, LOS ANGELES
Jaynes, 496 F.2d 9, 10 (2nd Cir. 1974) (noting that district
courts have the power only to subpoena witnesses in civil
cases who “reside within the district or without the district
but within 100 miles of the place of hearing or trial”). While
technology and the COVID-19 pandemic have changed
expectations about how legal proceedings can (and perhaps
should) be conducted, the rules defining the federal
subpoena power have not materially changed. We are bound
by the text of the rules. See Amchem Prods. v. Windsor, 521
U.S. 591, 620 (1997) (“The text of a rule . . . limits judicial
inventiveness.”). Notwithstanding the bankruptcy court’s
positive experiences with videoconferencing technology,
any changes to Rule 45, is one “for the Rules Committee and
not for [a] court.” Swedberg v. Marotzke, 339 F.3d 1139,
1145 (9th Cir. 2003); see also In re Cavanaugh, 306 F.3d
726, 731–32 (9th Cir. 2002) (“Congress enacts statutes, not
purposes, and courts may not depart from the statutory text
because they believe some other arrangement would better
serve the legislative goals.”).
Therefore, we conclude that the bankruptcy court
“misinterpreted the law” in its construction of Rule 45(c) as
applied to witnesses allowed to testify remotely under Rule
43(a) and the third Bauman factor weighs in favor of
granting mandamus relief. In re Walsh, 15 F.4th at 1009
(internal quotation marks and citation omitted); see also In
re Cavanaugh, 306 F.3d at 731–32 (issuing the writ where
the district court “went off the statutory track”).
B. Important Issue of First Impression
The fifth Bauman factor also weighs in favor of granting
mandamus relief. This factor “considers whether the petition
raises new and important problems or issues of first
impression.” In re Mersho, 6 F.4th at 903; see also In re
KIRKLAND V. USBC, LOS ANGELES 27
Cement Antitrust Litig., 688 F.2d at 1304. As previously
stated, “[m]andamus is particularly appropriate when we are
called upon to determine the construction of a federal
procedural rule in a new context.” Valenzuela-Gonzalez, 915
F.2d at 1279. Whether a witness can be compelled to testify
remotely despite falling outside Rule 45’s geographic
limitations is an important issue given the recent
proliferation of videoconference technology in all types of
judicial proceedings. Indeed, the bankruptcy court
acknowledges that this issue is likely to arise with greater
frequency following the COVID-19 pandemic.
Our system’s previously noted strong preference for live,
in-person testimony has a long pedigree. See Crawford v.
Washington, 541 U.S. 36, 43 (2004) (“The common-law
tradition is one of live testimony in court subject to
adversarial testing[.]”); Coy v. Iowa, 487 U.S. 1012, 1017–
20 (1988) (explaining—in terms of the Confrontation
Clause—that the right to “face-to-face confrontation” and
cross-examination “ensure the integrity of the factfinding
process” (cleaned up) (citation omitted)); Donnelly v. United
States, 228 U.S. 243, 273–76 (1913) (discussing the
important safeguards associated with “in person”
testimony); United States v. Thoms, 684 F.3d 893, 905 (9th
Cir. 2012) (noting “the Supreme Court and our court have
repeatedly cited the value of live testimony with respect”).
The rules were written with both an understanding of and
agreement with this historical view. See Fed. R. Civ. P. 43(a)
advisory committee’s note to 1996 amendment (“The
importance of presenting live testimony in court cannot be
forgotten. The very ceremony of trial and the presence of the
factfinder may exert a powerful force for truthtelling. The
opportunity to judge the demeanor of a witness face-to-face
is accorded great value in our tradition.”). As evidenced by
28 KIRKLAND V. USBC, LOS ANGELES
the diverging views in the district courts, application of the
rules to testimony provided via contemporaneous video
transmission has been perplexing and likely will continue to
be so. Therefore, we conclude that the issue raised by the
Kirklands’ petition is ripe for our consideration and is “a new
and far reaching question of major importance . . . [the]
resolution [of which] would add importantly to the efficient
and orderly administration of the district courts.” In re
Cement Antitrust Litig., 688 F.2d at 1305; see also Perry,
591 F.3d at 1158–59; Nat’l Right to Work Legal Def. &
Educ. Found., Inc. v. Richey, 510 F.2d 1239, 1243 (D.C. Cir.
1975) (recognizing that mandamus review is appropriate
“where the decision will serve to clarify a question that is
likely to confront a number of lower court judges in a
number of suits before appellate review is possible, as, for
example, where the district judges are in error, doubt, or
conflict on the meaning of a rule of procedure”).
C. Remaining Bauman Factors
The third and fifth Bauman factors are sufficient on their
own to warrant granting mandamus relief in this case. See In
re Sussex, 781 F.3d at 1076 (issuing the writ based on a
strong showing of Bauman factors three and five); Portillo
v. U.S. Dist. Ct., 15 F.3d 819, 822 (9th Cir. 1994) (similar).
Nonetheless, we consider the remaining factors.
1. Alternative Means of Relief
The first Bauman factor considers whether a petitioner
seeking mandamus relief has other means of attaining the
desired relief. In re United States, 884 F.3d 830, 834 (9th
Cir. 2018). The availability of relief through the ordinary
review process weighs against granting mandamus relief.
See In re Orange, S.A., 818 F.3d 956, 963–64 (9th Cir.
KIRKLAND V. USBC, LOS ANGELES 29
2016); Cole v. U.S. Dist. Ct. for the Dist. of Idaho, 366 F.3d
813, 820 (9th Cir. 2004).
Here, the Kirklands’ challenge to their subpoenas is a
collateral matter, and an “order[] denying a motion to quash
a Rule 45 subpoena generally cannot be immediately
appealed.” United States v. Acad. Mortg. Corp., 968 F.3d
996, 1006 (9th Cir. 2020). Instead, absent discretionary
interlocutory review, discussed further below, to obtain
effective review a litigant generally must “either seek
mandamus, or disobey the order and then appeal the
resulting contempt citation.” In re Grand Jury Investigation,
966 F.3d 991, 994 (9th Cir. 2020). Because we have not
required a litigant to “incur a sanction, such as contempt,
before it may seek mandamus relief,” there is support for the
first Bauman factor. United States v. Fei Ye, 436 F.3d 1117,
1122 (9th Cir. 2006); see also SG Cowen Sec. Corp. v. U.S.
Dist. Ct. for N. Dist. of Cal., 189 F.3d 909, 913–14 (9th Cir.
1999) (noting third parties “could not be expected” to seek
review through contempt proceedings).
However, the availability of interlocutory review
warrants specific consideration here given that this petition
arises from a bankruptcy case. In the ordinary civil case,
interlocutory appellate review is available by certification
from the district court under 28 U.S.C. § 1292. ICTSI
Oregon, Inc. v. Int’l Longshore & Warehouse Union, 22
F.4th 1125, 1130 (9th Cir. 2022). Under this statute, if the
district court certifies that an interlocutory order “involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the litigation,” we have discretion to exercise
interlocutory review. 28 U.S.C. § 1292(b); Bank of N.Y.
Mellon v. Watt, 867 F.3d 1155, 1159 (9th Cir. 2017). We
30 KIRKLAND V. USBC, LOS ANGELES
have held that failing to seek certification under § 1292(b)
does not bar granting mandamus relief. Cole, 366 F.3d at 817
n.4; see also In re Orange, S.A., 818 F.3d at 963.
In bankruptcy cases, there are three additional means for
seeking interlocutory review. 28 U.S.C. § 158(a)(3), (b)(1),
(d)(2); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249,
252–54 (1992). Primarily, a party may seek leave to appeal
an interlocutory bankruptcy court order from (1) the district
court, or (2) “with the consent of all the parties,” from the
BAP. 28 U.S.C. § 158(a)(3), (b)(1). 6 We also have discretion
to hear interlocutory appeals from bankruptcy court orders if
a lower court grants certification under 28 U.S.C.
§ 158(d)(2). Bullard v. Blue Hills Bank, 575 U.S. 496, 508
(2015); Bank of N.Y. Mellon, 867 F.3d at 1159. Under
§ 158(d)(2), the bankruptcy court, the district court, or the
BAP may, “acting on its own motion or on the request of a
party,” certify that:
(i) the judgment, order, or decree involves a
question of law as to which there is no
controlling decision of the court of appeals
for the circuit or of the Supreme Court of the
United States, or involves a matter of public
importance; (ii) the judgment, order, or
decree involves a question of law requiring
resolution of conflicting decisions; or (iii) an
immediate appeal from the judgment, order,
or decree may materially advance the
6
Because obtaining interlocutory review from the BAP under
§ 158(b)(1) depends on agreement of the parties, we focus our analysis
on the Kirklands’ ability to seek interlocutory review from the district
court under § 158(a)(3).
KIRKLAND V. USBC, LOS ANGELES 31
progress of the case or proceeding in which
the appeal is taken.
28 U.S.C. § 158(d)(2)(A)(i)–(iii) (emphasis added).
Here, the Kirklands moved the bankruptcy court to
certify an interlocutory appeal to this court under § 158(d)(2)
and alternatively to the district court under § 158(a)(3). The
bankruptcy court denied both requests. But the Kirklands did
not seek leave from the district court to file an interlocutory
appeal. 7 The Kirklands justify this failure by asserting that
“[t]here is no exhaustion requirement” for seeking
mandamus relief and that decisions from the district court
and the BAP bind only the parties and provide no procedural
guidance to lower courts. The Kirklands’ argument fails to
appreciate that the availability of alternate means for
obtaining relief weighs against mandamus relief where the
Supreme Court has clearly instructed that the writ of
mandamus is not to be used “as a substitute for the regular
appeals process.” Cheney, 542 U.S. at 380–81. And the
district court and the BAP, not this court, are chiefly charged
with reviewing interlocutory bankruptcy orders. See 28
U.S.C. § 158(a)(3); Bullard 575 U.S. at 508. Thus, we do not
treat lightly the Kirklands’ failure to seek interlocutory
7
Although the bankruptcy court stated that it “can certify an appeal of
an interlocutory order to the [d]istrict [c]ourt rather than [this court]”
under § 158(d)(2)(A), there is no support for that assertion. Certification
under § 158(d)(2) is directed only to a court of appeals. Bullard, 575 U.S.
at 508. Interlocutory review in the district court arises under § 158(a)(3),
which is a separate procedure. Leave under § 158(a)(3) must be sought
from the district court, not the bankruptcy court. See 28 U.S.C.
§ 158(a)(3); Fed. R. Bankr. P. 8004 (outlining procedure for seeking
leave from the district court or the BAP to appeal an interlocutory
bankruptcy order). Thus, the Kirklands erroneously sought leave to seek
interlocutory review in the district court from the bankruptcy court.
32 KIRKLAND V. USBC, LOS ANGELES
review in the district court. But we nonetheless conclude that
their failure does not mandate denial of mandamus relief
under the unique circumstances of this case. 8
The Kirklands did seek relief from the district court
related to the specific issue raised in this petition by filing a
motion in the district court. We previously recognized a
narrow futility exception to the no-alternate-means-of-relief
limitation. See Cole, 336 F.3d at 820. In Cole, the petitioner
failed to seek reconsideration of a magistrate judge’s non-
dispositive order with the district court under 28 U.S.C.
§ 636(b)(1)(A). Id. at 816. We explained that the “general
rule” that mandamus relief is warranted only where the
petitioner has no other means for seeking relief “may give
way to an exception if the petitioner can convincingly
demonstrate that reconsideration by the district court would
have been futile.” Id. at 820; see also id. at 819 n.9
(discussing a Third Circuit case that recognized “a narrow
exception to the general rule requiring review of the
magistrate judge’s non-dispositive orders by the district
court before mandamus relief can be issued”). But we
8
We do not address whether review by the district court under 28 U.S.C.
§ 158(a)(3) is sufficiently analogous to certification to the court of
appeals under § 1292(b) such that our rule that “the possibility of
certification, standing alone, is not a bar to mandamus relief” should also
apply in this context. In re Orange, S.A., 818 F.3d at 963; see In re Belli,
268 B.R. 851, 858 (B.A.P. 9th Cir. 2001) (“We look for guidance to
standards developed under 28 U.S.C. § 1292(b) to determine if leave to
appeal should be granted [under § 158(a)(3)], even though the procedure
is somewhat different.”); Ad Hoc Comm. of Holders of Trade v. PG&E
Corp., 614 B.R. 344, 351 (N.D. Cal. 2020) (same); see also 1 Collier on
Bankruptcy ¶ 5.08[4] (16th ed. 2023) (noting that § 1292(b) is the closest
analogy to seeking leave to appeal under § 158(a)(3)).
KIRKLAND V. USBC, LOS ANGELES 33
ultimately concluded that the petitioner failed to establish
futility in that case. Id. at 820.
Unlike in Cole, where the petitioner had an “absolute
right to seek district court reconsideration of the magistrate
judge’s decision” and did not pursue any review before
seeking mandamus relief in this court, id. at 816, 818, the
Kirklands did attempt to obtain review of the bankruptcy
court’s decision before seeking relief in this court.
Mrs. Kirkland, as trustee of BC Trust, unsuccessfully sought
review in the district court of the scope of the bankruptcy
court’s subpoena power by seeking reconsideration of the
district court’s reference of BC Trust’s case to the
bankruptcy court. Because the district court denied the
motion for reconsideration, the Kirklands argue that
requiring them to seek further interlocutory review in the
district court would be futile. We agree.
When the district court referred the claims against BC
Trust to the bankruptcy court, it stated that the bankruptcy
court could “rely on the testimony provided during the jury
trial” in Mr. Kirkland’s prior trial conducted in district court
but that “[i]f the [b]ankruptcy [c]ourt determines that it
needs substantial testimony from non-parties that would not
be necessary if th[e district] [c]ourt were to try the matter
(presumably because the [district c]ourt observed the
testimony given at the jury trial) . . . , the parties may seek
reconsideration of [the reference] on that ground.” Mrs.
Kirkland sought reconsideration from the district court after
the bankruptcy court ruled that BC Trust could not introduce
transcripts of the Kirklands’ prior testimony and required the
Kirklands to present live testimony. Specifically, the motion
for reconsideration argued, in part, that the Kirklands
“cannot be compelled to appear at trial because they reside
in the U.S. Virgin Islands, which is more than 100 miles
34 KIRKLAND V. USBC, LOS ANGELES
from the Court.” The district court denied reconsideration,
stating that if the Kirklands “fail[] to attend trial, the
[b]ankruptcy [c]ourt is entitled to make whatever adverse
findings it sees fit.” Because the district court heard and
rejected the Kirklands’ argument challenging the validity of
their trial subpoenas, we are persuaded that requiring the
Kirklands to seek interlocutory review in the district court
likely would be futile.
For these reasons, we conclude that the first Bauman
factor does not weigh against granting mandamus relief in
this case. 9
2. Likelihood of Irreparable Harm
Our inquiry under the second Bauman factor is closely
related to the first— the Kirklands must demonstrate that
they will suffer harm that cannot be remedied through
normal post-judgment appeal. See In re Orange, S.A., 818
F.3d at 963–64. The Kirklands contend that they will be
harmed by having to testify at BC Trust’s trial after they have
already given testimony in the underlying proceeding twice.
They also contend that testifying remotely would be
“inadequate[],” and that if they are forced to wait to
challenge the bankruptcy court’s denial of their motions to
quash until after BC Trust’s trial, the error of being wrongly
forced to testify will be irremediable.
9
Even if the first Bauman factor did weigh against mandamus relief, we
have granted mandamus relief where this factor is lacking, especially
where “the fifth Bauman factor (novel issue of circuit law) is satisfied,”
as it is here. Cole, 366 F.3d at 820 n.10; see, e.g., San Jose Mercury
News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1099–100 (9th Cir. 1999)
(issuing the writ where the second, third, and fifth Bauman factors were
satisfied, despite finding that the “first Bauman factor tip[ped] against
mandamus relief” because a direct appeal was available).
KIRKLAND V. USBC, LOS ANGELES 35
Recently, we concluded that the harm suffered from
having to comply with an invalid deposition subpoena was
“the intrusion of the deposition itself,” which was “not
correctable on appeal, even if [the deponent’s] testimony is
excluded at trial.” In re U.S. Dep’t of Educ., 25 F.4th at 705.
The same reasoning applies here. If the Kirklands comply
with their subpoenas and testify at trial, the violation of
having to give testimony when the bankruptcy court has no
authority to compel them to do so cannot be fully remedied
post-judgment. Therefore, the second Bauman factor also
supports granting mandamus relief.
3. Oft-Repeated Error
Finally, the fourth Bauman factor “looks to whether the
case involves an ‘oft-repeated error.’” In re Mersho, 6 F.4th
at 903 (citation omitted). The fourth and fifth factors are
rarely present at the same time. Id.; Admiral Ins. Co. v. U.S.
Dist. Ct. for Dist. of Ariz., 881 F.2d 1486, 1491 (9th Cir.
1989). However, we have recognized that the fourth and fifth
factors can both be present when a procedural rule is being
applied in a new context because this situation presents “a
novel question of law that is simultaneously likely to be ‘oft-
repeated.’” Valenzuela-Gonzalez, 915 F.2d at 1279; see also
Cohen v. U.S. Dist. Ct. for N. Dist. of Cal., 586 F.3d 703,
711 (9th Cir. 2009). Because we conclude that the fifth factor
strongly weighs in favor of exercising our mandamus
authority, we do not analyze the fourth factor in depth and
simply reiterate that, given the importance and novelty of the
issue presented and the ongoing confusion in the district
courts, providing guidance regarding Rule 45’s application
to remote testimony is warranted, especially where this
collateral issue is likely to continue to evade review. See
Perry, 591 F.3d at 1159.
36 KIRKLAND V. USBC, LOS ANGELES
III. CONCLUSION
We conclude that mandamus relief is warranted. We
have not previously addressed the application of Rule
45(c)’s geographical limitations to testimony provided via
remote video transmission, which is a question of increasing
import given the recent proliferation of such technology in
judicial proceedings. Moreover, we conclude 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. Because the bankruptcy court concluded
otherwise, we grant the Kirklands’ petition and issue a writ
of mandamus ordering the bankruptcy court to quash their
trial subpoenas. See Cheney, 542 U.S. at 380.
PETITION GRANTED. 10
10
The trustee’s Request for Judicial Notice, Dkt. No. 10, is DENIED.