The post-pandemic litigation environment has seen a rising desire to conduct depositions remotely and a diminishing opposition to remote proceedings. Where litigators do insist on in-person proceedings, those cases are largely confined to special circumstances where in-person proceedings are believed to have a critical impact on litigation objectives. Disputes are uncommon: negotiations occur, and depositions are noticed, without judicial intervention in almost every case.
That’s not to say disputes over deposition formats don’t arise anymore. They do. Now that the COVID-19 pandemic is behind us, however, the justifications for insisting on a remote deposition are less compelling than the nontrivial risk of serious disease or death.
Mere Inconvenience Isn’t Enough
The general rule in both federal and state courts is that the party noticing the deposition may elect the format of the deposition. In the event a dispute arises, the party opposing the chosen deposition format must advance a compelling, case-specific reason why the deposition should take place in a different fashion. In the case of remote depositions, the party opposing the remote deposition is usually required to make a particularized showing that conducting the deposition by remote means would be prejudicial.
In Moore v. EO Products LLC, No. 22-cv-07618 (N.D. Calif., Oct. 8, 2024), the plaintiff in a putative class action suit advanced a reason for conducting her deposition remotely that the court found insufficiently compelling. The case had been filed in California; the plaintiff resided in New York. The plaintiff was willing to travel to testify in person for trial but not for her deposition. She told the court there was “no practical reason for [her] to fly across the country” for her deposition because “remote depositions are routine, cost-effective, and just as effective for testing a witness’s credibility.” She also argued that an in-person deposition in California would be a waste of money, time, and environmental resources.
That’s not to say disputes over deposition formats don’t arise anymore. They do. Now that the COVID-19 pandemic is behind us, however, the justifications for insisting on a remote deposition are less compelling than the nontrivial risk of serious disease or death.
The court didn’t dispute any of the virtues of remote depositions cited by the plaintiff. But none of them, the court said, added up to an “undue burden” or “exceptional circumstance” that would justify the plaintiff’s refusal to travel to California for her deposition. This is particularly true, the court said, when California is the forum selected by the plaintiff when she filed the lawsuit.
Misbehavior Demands In-Person Deposition?
The trial court’s patience was sorely tested in the case of Browne v. Equifax Information Services LLC, No. 23-cv-00064 (N.D. Ind., Sept. 27, 2024), where counsel sparred repeatedly over pretrial discovery matters. Numerous motions for protective orders and sanctions found their way onto the docket. “I quickly came to the conclusion that both parties have become intransigent during the course of their working relationship,” the magistrate judge wrote in a ruling imposing sanctions against the plaintiff’s attorney. “Each side is quick to accuse the other of being uncooperative, and neither party seems willing to give an inch on even the most basic disputes such as whether to finish a line of questioning or take a break.”
Against this background, the defendant’s attorneys filed a motion to require that a planned Rule 30(b)(6) deposition of one of their executives be held in-person because – they alleged – the plaintiff’s counsel had a history of misbehaving during remote depositions. According to the defendant, “plaintiff’s counsel’s behavior in these remote depositions has been so outrageous that he should be forced to travel to Atlanta to conduct the deposition in person so that Equifax could have a ‘separate camera trained’ on Plaintiff’s counsel to discourage him from mistreating the company’s witnesses.”
The magistrate judge denied the motion, apparently without seriously considering it, because he had become convinced that there was fault on both sides due to “inflexible litigation postures” that had characterized the litigation up to that point.
COVID No Longer a Compelling Reason
The case of Buergofol GMBH v. Omega Liner Co., Inc., No. 22-cv-04112 (D. S.D., Sept. 25, 2024), a patent dispute, involved the defendant’s insistence that an executive of the plaintiff (a company based in Germany), should travel 5,000 miles to South Dakota for a deposition. The court denied the plaintiff’s request that its executive be allowed to have his deposition taken remotely.
While the distance involved was greater than in the Moore v. EO Products litigation, the court’s resolution of the discovery dispute followed a similar path. First, the court noted that the German company had selected South Dakota as the forum. Second, it said, the mere inconvenience of travel and prospect of missing time at work are not sufficiently compelling reasons for insisting on a remote deposition – particularly when the travel is necessitated by the witness’s own forum selection.
The court concluded that “the hassle” of taking off work and traveling to South Dakota were “not a legitimate reason to conduct his deposition remotely.” Nor are the costs of travel to South Dakota an adequate reason for holding the deposition remotely, the court said. Those should have been taken into account when the plaintiff filed its lawsuit in South Dakota. Finally, the court rejected COVID-related health concerns as a reason for conducting the deposition remotely. Vaccines are widely available, the Centers for Disease Control has published guidelines for holding depositions safely, and the witness here has cited no specific reason why he is particularly vulnerable to COVID-19.
Takeaways
What lessons can be drawn from these cases? There are a few:
- generalized COVID-19 concerns are no longer compelling grounds for conducting a deposition remotely (Buergofol)
- parties will have a difficult time opposing in-person depositions in the forum they elected to file suit in (Moore, Buergofol)
- the inconvenience of long-distance travel is not a compelling ground for conducting a deposition remotely (Moore, Buergofol)
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- the cost associated with long-distance travel is not a compelling ground for conducting a deposition remotely (Moore, Buergofol)
- attorney misbehavior during prior remote depositions isn’t necessarily an adequate ground for conducting the next deposition in person (Browne)
- disputing everything may make it difficult to prevail on anything (Browne)
Venue Transfers and Technology
Prior articles have touched on the impact remote depositions might have on court rules that take into consideration travel distances and convenience of the parties. Venue transfer rules are one such inquiry; the federal rule limiting subpoena power over nonparties to 100 miles of their residence or place of employment is another. Courts are being asked to weigh whether the inconvenience of long-distance travel for depositions and trials ought to loom as large in their decisions as it once did.
These ideas popped up in two recent rulings. In Kimble v. Opteon Appraisal Inc., No. 23-cv-06399 (W.D.N.Y., Sept. 20, 2024), the court observed that a venue transfer from New York to Illinois wouldn’t inconvenience witnesses because depositions could be taken remotely and, in this case, the defendant’s workforce was largely remote and thus familiar with videoconferencing tools. And it added: “Of note, the rise of remote videoconferencing may soon undercut the usefulness of this factor in the transfer analysis.”
Another recent court opinion on venue transfer, Merchants Retail Partners Mgmt., LLC v. Holst, N.D. Ala., Sept. 18, 2024), contained similar themes. Because of remote technologies, access to evidence – a key consideration – would neither be advanced nor impaired if the case was moved from Alabama to Colorado. The court noted that the parties could depose witnesses remotely in either location. Document discovery, it said, can be “manage[d] electronically, minimizing or obviating inconvenience related to that work.”
In an age of “Zoom depositions” and virtual appearances, travel is becoming somewhat optional in many litigated matters. And it’s changing the law as well.
