The devastating wildfires that raced through southern California these past few weeks caused loss of life, property damage in the billions of dollars, and upheaval in the lives of millions of Americans who live in that region. Lawyers, of course, were not exempted from the tragedy. Numerous law firms impacted by the fires have been forced to temporarily shutter their physical offices, electing remote work until the safety of their staff and staff’s families could be assured.
Evacuation Possibility Is Good Cause
Beyond office closures, the fire’s effects are being felt in civil litigation as well. A brief discovery order issued Jan. 13 tells the story of one government lawyer whose residence is located just three blocks from a mandatory evacuation zone near the Palisades fires. The lawyer’s residence is located in an “evacuation warning zone,” an area of lesser peril that did not, for the time being, require evacuation.
In court pleadings seeking an emergency order that four imminent depositions be conducted remotely, the lawyer explained that weather reports raised the possibility that the fire would head toward his residence and require the evacuation of himself and his family on the eve of the scheduled depositions.
The depositions were scheduled to be held on consecutive days beginning Jan. 13, in person in Las Vegas, which would have required the lawyer to travel from his California residence and stay in Nevada for the entirety of that week. Counsel for the plaintiffs would not agree to conduct the depositions remotely; instead, he offered to reschedule the depositions or conduct them in-person, as originally scheduled. This was how things stood when the government’s emergency motion landed on the court’s docket.
It didn’t take long for the court to decide that remote depositions were the way forward for this case. See Manansingh v. United States, No. 20-cv-1139 (D. Nev., Jan. 13, 2025), for the court’s ruling.
Because of the Palisades fires, the government’s lawyer cannot reasonably be expected to travel to Las Vegas; on the other hand, the plaintiffs had failed to demonstrate they would be prejudiced by remote depositions.
In the federal system, courts generally follow a two-part test when deciding whether to order that depositions be conducted remotely. First, the party seeking a remote deposition must provide a “legitimate reason” for seeking a remote deposition. Second, if a legitimate reason has been advanced, then the burden shifts to the party opposing the remote deposition to make a “particularized showing” that conducting the deposition remotely would be prejudicial.
The court decided here that the government had made the necessary showing for a protective order. The “sudden and devastating Palisades fire and Defendant’s counsel being located in a mandatory evacuation zone” constitute a “legitimate reason” for seeking a remote deposition, the court said, adding that it could not identify any facts suggesting that remote depositions would prejudice the plaintiff’s in this case.
Ninth Circuit Cases Favor Remote Depositions
The government’s bid to secure the emergency protective order was buoyed by a pair of court opinions, issued during the COVID-19 pandemic, that are broadly supportive of moving cases forward through the use of remote depositions.
The first is Grano v. Sodexo Management Inc., No. 18-cv-1818 (S.D. Cal., April 24, 2020), a case in which a federal magistrate judge rebuffed a long list of objections to remote depositions that were common in 2020. Among Sodexo’s grounds for resisting remote depositions:
- preparing for and conducting remote depositions is “unworkable”
- the witness requires an interpreter
- the witness lacks reliable Internet access
- the witness lacks a computer with a camera
- the witness lacks a private space for giving remote testimony
- the deposition will be “document intensive”
- the witness and Sodexo’s counsel belong to a “vulnerable demographic” (age)
- conducting depositions via videoconference will be “cumbersome”
The magistrate concluded that none of these objections, alone or together, added up to good cause for a protective order demanding that the depositions be conducted in person. “Attorneys and litigants all over the country are adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely,” the magistrate judge observed, adding that training in conducting remote depositions was widely available from bar associations and deposition services providers.
In the second case, Swenson v. GEICO Casualty Co., No. 19-cv-1639 (D. Nev., Aug. 19, 2020), they rejected a similar demand for an in-person deposition and in the process collected dozens of cases that had turned back fuzzy, nonfactual objections to remote depositions. The claim that remote depositions are insufficient substitutes for in-person depositions lacks both legal and factual support, the court remarked.
Presciently, the court remarked that “ample resources exist for counsel to prepare themselves to proceed by video to facilitate the smooth operation of a remote deposition.” The court’s words in 2020 neatly describe present-day practice, where litigators have become skilled in virtual advocacy and remote depositions have become the norm – in good times and bad.
