What is the range of a federal district court's power to compel a nonparty's attendance at a hearing? Every practicing litigator knows the answer—"within 100 miles of where the person resides, is employed, or regularly transacts business in person." FRCP 45(c)(1). But that is only half the answer. As the Federal Circuit recently held, when a lawyer issues a subpoena, the geographical limits of Rule 45 apply. But when the court acts on its own? That's a different matter.
The case, Backertop Licensing LLC v. Canary Connect, was originally patent litigation filed in 2022—one of a series of twelve cases filed by Backertop, and also part of a much larger set of cases (at least ninety-seven) filed by affiliated entities that, as the Federal Circuit panel put it, all "seem to be associated with IP Edge, a patent monetization firm, and Mavexar, an affiliated consulting shop." But this particular case landed on the desk of Chief Judge Colm Connolly of the District of Delaware, whose standing order contains very particular real-party-in-interest disclosure requirements: an LLC, joint venture, or partnership appearing in his court as a party "must include in its disclosure statement filed pursuant to Federal Rule of Civil Procedure 7.1 the name of every owner, member, and partner of the party, proceeding up the chain of ownership until the name of every individual and corporation with a direct or indirect interest in the party has been identified."
Judge Connolly takes this requirement seriously, and when parties submit what appear to be insufficient disclosures, he investigates. Thus, as the Federal Circuit noted, "[o]ver the past year and a half, the Chief Judge . . . has identified potential attorney and party misconduct in dozens of related patent cases" filed by LLCs apparently associated with IP Edge and Mavexar. Indeed, Judge Connolly's investigations suggest that "those real parties in interest perpetrated a fraud on the court by fraudulently conveying to a shell LLC [the patents] and filing a fictitious patent assignment with the PTO designed to shield those parties from potential liability they would otherwise face in asserting [the patents] in litigation"—as well as failing to abide by the court's own disclosure requirements.
Judge Connolly ordered the principal of Backertop to appear in his court to "sort out the morass" after Backertop initially refused to produce documents in response to the court's fraud concerns and its attorney attempted to withdraw from the case. The principal objected, asserting that travel would pose a hardship for her due to childcare obligations. When she still refused after the court reset the hearing to accommodate her, the court initiated contempt proceedings. The principal filed a motion asserting that the court lacked the authority to compel her to travel, as she was outside the range specified in Rule 45—an argument Judge Connolly rejected, holding her in contempt and imposing a $200/day fine until she appeared.
The Federal Circuit panel agreed with Judge Connolly, holding that "the District Court's order requiring [the principal] to appear at an in-person hearing falls squarely within its inherent powers," not Rule 45's subpoena power, and thus "that Rule does not limit the geographical range of a court's ability to sua sponte issue an order to appear."
Key to the court's holding was Rule 45's purpose in enabling "a party or attorney's efforts to subpoena a person"—not the district court's. The opinion walked through the plain language of the Rule—"[a] party or attorney" is "responsible for issuing and serving" a subpoena—as well as its structure, noting that "many of FRCP 45's requirements would be illogical if applied to a court's own orders," such as mandatory sanctions on a subpoenaing party for certain abuses. (Obviously, the court will not sanction itself.)
The court also examined the history of Rule 45, noting that "[s]ince its inception" the Rule "has expressly applied to subpoenas that parties requested and served without initial court oversight." And in 1991 the Rule was amended to allow attorneys to issue subpoenas without even having the request them from the clerk. In the absence of any supervision or check, the court concluded, "it makes sense that the Rules would impose bright-line rules on the scope of party- and attorney-initiated subpoenas—as well as specific mechanisms to hold parties and attorneys accountable." But a court's own order to appear does not raise those issues—the court is involved directly and can weigh for itself the burden of an order requiring long-distance travel against the needs of the case.
The panel did not endow the district court with unlimited power, of course: it indirectly left open the possibility that an order to appear could be reviewable if "unreasonable or an abuse of discretion." But because the witness being compelled was the sole human representative of the plaintiff, which was suspected of fraudulent behavior, the order was a "reasonable response to the problems and needs confronting the court's fair administration of justice."
Lawyers refer to the limitations in Rule 45 so often that it is easy to get into the habit of thinking it is a limitation on the power of the court. But according to the Federal Circuit it is actually a limitation on us; and we and our clients can still be subject to a federal court's power no matter where we are.
And for class action litigators, there's an additional lesson here: following this ruling and Judge Connolly's example, district courts may be more emboldened to demand clarity about the real parties in interest controlling litigation before them. While serial patent litigation is one business model where real parties may prefer to stay hidden, the same issues of real parties controlling litigation but shielding themselves from scrutiny can arise in class cases, potentially distorting the usual settlement incentives and affecting the rights of large numbers of absent plaintiffs. State borders and the 100-mile rule notwithstanding, federal district courts are broadly empowered to investigate and punish fraud, procedural abuse, and other misconduct related to their cases—including class cases.
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