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