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Remote Depositions in the Time of COVID - Rule 30(b)(4)

Posted by Dev Sethi | May 08, 2020 | 0 Comments

This blog collects trial court orders allowing remote video depositions over the objection of a party.  Check back for updates. 

The COVID 19 health crisis continues.  Courthouses around the nation are operating with skeleton staff to protect the health and welfare of both court staff and the general public. At the same time, the judicial system is working to balance the rights of parties in civil and criminal cases.  No jury trials are going to take place anywhere in the country through the month of May, at the very least.  The logistics and public health considerations surrounding bringing folks down for jury duty, and then seating them in a tight jury box, are daunting. When jury trials start up again, it's sure to be criminal cases that get priority over civil cases, and with several months of backlog in the system, it is going to take some time for things to settle down.  

Constitutional mandates are eventually going to collide with public health policy when it comes to trials, but until then, lawyers are trying to keep the wheels moving forward.  The Arizona Supreme Court has issued a series of Administrative Orders,  recent notes that courts remain open to serve the public with certain limitations in place. The Court anticipates it "will begin a phased in approach to conduct hearings and jury trials in late Spring or early Summer." And "will issue an order providing for that transition" soon.  Until then, the Supreme Court has ordered the liberal use of available technologies such as videoconferencing and teleconferencing to conduct business. 

Ariz. R. Civ. Pro 30 allows for remote video conference depositions if the parties agree or the court orders it.  By and large we have been reaching agreement with opposing counsel and proceeding with video depositions.  They have gone smoothly.  Exhibits are easy to share, audio/video connections are good, and any hiccups have been handled.  But some defendants object.

Here are some trial court orders from around the nation allowing remote video depositions during this time of COVID crisis. The decision is left to the discretion of the trial court, but the solid weight of authority is to allow remote depositions. "Generally "leave to take depositions by remote means will be granted liberally."  Federal Civil Rules Handbook, 855 (citation omitted):

Today a New Jersey court allowed remote depositions - even after a telephonic oral argument glich where everyone was kicked off the call.  The judge ordered the deposition of a 30(b)(6) witness to go forward, writing:

These are unprecedented times. Courts, litigants, and counsel everywhere are learning a new normal. Many depositions during this short amount of time have taken place via videoconferencing and there is no reason that these depositions cannot move forward as well. To stop litigation until this pandemic passes is unrealistic. With the efforts of counsel, depositions can take place over videoconference. Defendant has showed no actual prejudice besides wanting to be present in the room with their witnesses during deposition. However, this is not possible right now and to keep everyone safe, depositions should move forward in the safest way possible. As such, Defendant's motion for protective order is DENIED.

The court considered the connectivity issues that occurred in having oral argument. However, text messages, email, interoperability of technology, patience, and cooperation make it all possible.

Shattuck v. Ford, Superior Court of New Jersey, Mercer County. Docket L-001776-18.

Klein v. Transguard Insurance, Sarasota County, Florida, 2018-CA 006742 NC. Defendant sought a protective order delaying his deposition until his counsel could sit next to him in the same room.  The court rejected that argument and ordered the deposition to go forward via remote means, finding that there is no right to physical presence during a deposition, and that the defendant would have his lawyer "present" with him during the deposition.  The context may be important. The court notes "the struggles associated with setting" the deposition.

Dillon v. Sunbelt Rentals, Inc. 2020 WL 2119738 (S.D. Fla., May 5, 2020) (Matthewman, M.J.)
There is a remote deposition protocol in place in this case, and a remote deposition provides a cost-saving opportunity to the parties so that international travel is not necessary.

In re Flint Water Cases, 2020 WL 2097652, at *2 (E.D. Mich., May 1, 2020) (Levy, J.)
Attorneys and litigants all over the country are adapting to a new way of practicing law, including
conducting depositions and deposition preparation remotely. See De Lench v. Archie, 2020 WL
1644226, at *2 (D. Mass., Apr. 2, 2020) (“reminding the parties that the April 5, 2021 trial date
remains firm” [and] [i]n light of the current coronavirus pandemic, [ ] encourag[ing] the parties to avail
themselves of video technology for meetings, depositions, and other communication and
interactions arising in the discovery process”).

Grano v. Sodexo Mngmt., Inc., 2020 WL 1975057, at *3 (S.D. Cal., April 24, 2020) (Major, M.J.)
Despite the current requirement for social distancing, depositions may be completed by videoconferencing; a court reporter, able to swear the witness, is not required to be in the same location
as the witness. The key preparation for such a remote deposition is to be certain that all documents
to be utilized are pre-marked, and copies are present and available at the witness's location, the
court reporter's location, and the location of each counsel in the case.

SAPS, LLC v. EZCare Clinic, Inc., 2020 WL 1923146 at *2 (E.D. Louisiana, April 21, 2020) (van Meerveld, M.J.) The entire world is in the midst of a pandemic.  Courts around the country have modified procedures to try and combat the spread of COVID-19 while continuing to operate. It is not feasible to delay depositions until some unknown time in the future. Remote depositions of witnesses and parties are allowed.  Fees request denied, but the court cautions the parties to cooperate to the fullest in arranging depositions.  "The hardships presented by the pandemic must inspire a higher level of cooperation, courtesy, and creative problem solving between counsel than that demonstrated here."

KOS Building Group v. R.S. Granoff Architects, P.C., 2020 WL 1989487, at *6 & n.5 (S.D.N.Y., April 24,
2020) (Smith, M.J.) declining to stay the case for ninety days in light of COVID-19 pandemic
 - noting on 313/20, Mayor Bill de Blasio "declared NYC to be in a state of emergency." That same
day, the United States District Court for the Southern District of New York (“Southern District”)
issued Standing Order 20 MISC 138, which encouraged individual judges to conduct court
proceedings by phone and video conferencing where practicable.

Herrera v. City of New York, 2020 WL 1879075 (S.D.N.Y., April 15, 2020) (Aaron, M.J.)
I have serious concerns about sending American attorneys to Somalia, both because of dangers to
Americans in the region, and the risks of travel during the coronavirus pandemic. But this does not
necessarily rule out the possibility of taking testimony from witnesses located in Somalia. It seems
that the government should be able to facilitate remote depositions that do not require any attorneys
to travel to Somalia. If it is technologically feasible, the parties should conduct recorded Rule 15
depositions over videoconference with witnesses at the United States Embassy in Mogadishu. I
choose this solution rather than CCTV testimony.

Velicer v. Falconhead Capital, LLC, 2020 WL 184773 (W.D. Washington) (Robart, J.) Denying parties' stipulation to extend unexpired deadlines by 90 days. "The parties assert that the pandemic impacts their ability to take depositions in person, but they do not discuss why they cannot conduct such depositions by telephone or other remote means. Although the court understands the parties' preference for taking depositions in person, given the present circumstances, the court urges the parties to consider available alternatives. See Fed. R. Civ. P. 30(b)(4) (“The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.”). Further, despite the pandemic, the court is fully capable of resolving any discovery disputes that the parties cannot resolve themselves. Indeed, the pandemic has not affected the court's ability to resolve written motions or to conduct telephonic hearings. Finally, although the court appreciates the parties' concern regarding the number of trials that have been postponed due to the pandemic, postponing the trial here is unlikely to aid the court's related scheduling issues. Accordingly, the court denies the portion of the parties' stipulated motion seeking a 90-day extension of all unexpired case schedule deadlines."

Jarrell v. Wright National Flood Insurance Company, WL 1472909 at *1 (M.D. Louisiana) (Bourgeois, M.J.) Directing the parties to continue discovery and explicitly authorizing the taking of depositions by remote means pursuant to Rule 30(b)(4), where necessary.

I will continue to update, so check back...

About the Author

Dev Sethi

Dev Sethi litigates and tries a wide-range of complex injury and death cases throughout Arizona. He has Martindale Hubbell's highest rating, AV, and he is listed in "Best Lawyers." Dev is also recognized as an Arizona Super Lawyer in the area of plaintiff's products liability litigation.Dev has been at the forefront of auto product defect litigation. He played a key role in uncovering the Goodyear Load Range E tire scandal and worked to hold Ford Motor Company responsible for the danger posed by their now notorious 15-passenger vans. Dev is currently representing families in product liability suits against the nation's largest corporations including General Motors, Ford, Pentair Pools and Invacare.


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