Getting Through the Legislative Red Tape

Sept. 11, 2011, marks the 10th anniversary of two planes crashing into the WorldTrade Center towers. Thousands of people died in the tragedy and the nation mourned. And we still remember the unspeakable horror of that day. In the wake of the disaster, thousands of businesses were ruined. Ultimately, they recovered $1.2 billion, but it didn't come easy.

Lawsuits to recoup their damages were consolidated into a case that was filed in federal court in the Southern District of New York. As discovery got underway, it was apparent that trial testimony from nonparty witnesses from around the country would be required. However, an act of Congress passed more than 200 years ago only authorized federal courts in civil cases to issue subpoenas for trial witnesses and documents to those who reside no more than 100 miles from the site of the courthouse. In the case of the towers' collapse, the 1793 law threatened a second disaster.

Witnesses from around the world were involved. Security screeners and their managers who resided in Boston and Washington, D.C., where the flights emanated, cleared 19 hijackers that day. The ability to call nonparty witnesses only from the New York metropolitan area would mean the plaintiffs could never fairly demonstrate liability nor present live witnesses at trial as the Constitution provides. Although the Federal Rules of Civil Procedure have a stated goal of securing "the just, speedy and inexpensive determination of every action," (F.R.Civ.P. 1), Rule 45(b)(2) was an example of an archaic rule that perpetuated a doctrine that should have been changed long ago, given the transportation and technology advances of the 21st century.

For years, lawyers and academics have complained of the inequity of the 100-mile limit rule. Its origin was 14th century England when witnesses to civil cases generally involved members of the community who had personal knowledge of the matter and got around on horse and buggy. Expansion of this anachronistic law never evolved in this country despite improvements in communication, technology and transportation.

Instead, the Judiciary Act of 1789 provided for the issuance of deposition subpoenas 100 miles from the courthouse in civil trials. The act had to be amended in 1793 to enable the federal courts to issue subpoenas for the appearance of trial witnesses, again with the same 100-mile limitation.

Since 1793, the law remained virtually unchanged until 1922 when Congress passed an amendment following World War I to allow for the executive branch to pursue civil damages against war material contractors who had allegedly defrauded the country. The amendment was extended for another three years.

In 1934, the Rules Enabling Act was passed which, effective in 1938, created the first unified Federal Rules of Civil Procedure, including the 100-mile limit. From time to time, courts have become creative in circumventing this harsh rule or Congress has made exceptions. The solution was to change the law.

As the liaison counsel representing some of the business plaintiffs, we approached congressional leaders to explain the injustice and the disparate impact of the law on these business owners. Nationwide, service of trial or trial-like subpoenas had been recognized in a number of other contexts in the past involving criminal matters, civil RICO cases, antitrust matters and administrative proceedings involving the Fair Trade Commission and the Federal Communications Commission.

Then-Sen. Joseph Biden, D-Del., introduced a bill in the Senate (S.2106) that extended the subpoena reach in civil cases. A nearly identical bill (H.R.3921) was introduced in the House. We explained how the mandatory evidence-gathering mechanism of the current rule was at odds with the goals of the Federal Rules and could lead to enormous unnecessary and redundant expense.

The bill, an amendment to the Air Transportation Safety and System Stabilization Act, was called the Procedural Fairness for Sept. 11 Victims Act of 2007 and provided for nationwide subpoenas requiring the attendance of witnesses at trial or a hearing conducted under that section at any place in the United States. Rep. Jerrold Nadler, D-N.Y., sponsor of the bill in the House who represents much of Manhattan, spoke at the congressional hearings of the need to secure all witnesses and evidence to fulfill the congressional intent to obtain a full and fair hearing on matters. The bill applied equally to plaintiffs and defendants and it allowed the court to retain its authority to modify or quash any subpoena.

The bill easily passed both houses and was signed into law by President George W. Bush on Sept. 7, 2007. The Procedural Fairness for Sept. 11 Victims Act of 2007 is an example of Congress listening to the needs of those who were seeking justice.

As everyone relives their memories of that day 10 years ago, and the tears are sure to flow once again, America tries to close the chapter, while learning some important lessons. Procedure can be a means to a just end, and as those who suffered property damage claims have found, the law is not intransigent. It can be changed if Congress sees the inequity of a situation and a president signs what is just into law.