Client Alert: "Is the Future of the Civil Trial Hybrid? Federal Rules Committee Considering Amendments to FRCP 43" by Katherine E. Charonko and Allison A. Bruff

About the Authors:

Katherine Charonko is a thought leader and pioneer in the field of Electronically Stored Information (ESI) and is Bailey Glasser’s ESI and Technology Practice Group Leader. 

Allison A. Bruff is a lawyer based in Bailey Glasser’s Washington, D.C. office and works in the firm’s Consumer Litigation Practice Group. Before joining Bailey Glasser, Allison served as counsel to the Judicial Conference’s Advisory Committees on the Federal Rules of Civil and Criminal Procedure, advising judiciary officers and employees on matters of practice and procedure.

Future amendments to the Federal Rules of Civil Procedure may make it easier to use remote witness testimony in federal civil trials. The Advisory Committee in charge of proposing Civil Rules amendments recently signaled that we are headed in that direction.

On October 24, 2025, in Washington, D.C., the Advisory Committee on Civil Rules gathered for its biannual meeting to address proposals to amend the Federal Rules of Civil Procedure. The Advisory Committee’s members include federal and state judges, practicing lawyers, and law professors—all appointed by the Chief Justice of the United States.

One major topic on the Advisory Committee’s agenda is the restrictive standard for remote trial testimony in federal civil cases. Rule 43(a) generally requires live trial testimony to be taken in open court. After the COVID-19 pandemic forced courts to embrace—for a time at least—virtual proceedings through the use of videoconferencing technology, questions emerged about whether the federal judiciary should expand remote public access to court proceedings and allow for more remote witness testimony. In response, in September 2023, the Judicial Conference adopted a new policy expanding remote audio access to civil (and bankruptcy) proceedings.

In April 2024, the Advisory Committee on Civil Rules established a Rule 43/45 Subcommittee to consider various issues concerning remote trial testimony. That Subcommittee has already published one proposed amendment to Rule 45(c), which is out for public comment now. Proposed new subsection (c)(2) would provide that the “place of compliance” for subpoenas for remote testimony is “the location where the person is commanded to appear in person.”

The Subcommittee has now turned its attention to Rule 43(a), and reported on that work at the recent Advisory Committee meeting. During the discussion on Rule 43(a), the full Advisory Committee came to a general consensus that the “compelling circumstances” standard for permitting remote trial testimony is likely too high and that judges need more discretion under the rule. By relaxing the high standard, one member observed, a rule amendment could better equip federal judges to conduct civil trials with both in-person and remote testimony, improving access to justice.

To be sure, the Subcommittee and Advisory Committee have plenty of work ahead of them before any such amendment would take effect. But we can reasonably expect in the next couple of years to see a proposed amendment to Rule 43(a) that would abandon the high bar of “compelling circumstances” to permit remote witness testimony in federal civil trials. Any rule change would likely retain the “good cause” and “with appropriate safeguards” requirements of 43(a).

Other notable topics on the Advisory Committee’s October 24 agenda included Class Actions (Rule 23) and Third Party Litigation Funding (TPLF).

Bailey Glasser’s class action practice is robust, and our experienced class action litigators will closely watch the development of any potential proposed amendments to Rule 23. Bailey Glasser also recently formed a Litigation Funding Disputes team dedicated to helping lawyers and law firms navigate litigation funding issues. To read a recent client alert from that team about ethical issues involving litigation funding, visit this link. The team will monitor the Advisory Committee’s ongoing study of TPLF issues.

These topics—remote testimony, class actions, and TPLF—will be discussed again at the Advisory Committee’s April 2026 meeting in Charlotte, NC, and we will continue to report and comment on new developments.