To their credit, experienced litigators are able to resolve the vast majority of pretrial discovery disputes without the need for court intervention. This is particularly true when the dispute in question is whether a particular deposition should be conducted in person or remotely.
When negotiations break down over the location of a deposition or means by which a deposition will be conducted, the governing legal yardstick in federal courts is supplied by Rule 26(c) of the Federal Rules of Civil Procedure, which authorizes courts to limit or regulate discovery upon a showing of “good cause.
With remote depositions, litigators gain efficiency and cost savings over in-person depositions, which may involve the inconvenience of travel to another city or, as we have noted, be difficult to schedule during the time windows set out in pretrial discovery orders. But traditional in-person depositions also have their advantages. When it appears that litigation objectives may rise or fall based on a deponent’s testimony, many experienced litigators are loathe to forego the close scrutiny of an in-person examination. There may be other strategic considerations in play as well. Every case is different.
When negotiations break down over the location of a deposition, or means by which a deposition will be conducted, the governing legal yardstick in federal courts is supplied by Rule 26(c) of the Federal Rules of Civil Procedure, which authorizes courts to limit or regulate discovery upon a showing of “good cause.” Recent experience with Rule 26(c) in the context of remote depositions has demonstrated that, while all courts invoke the “good cause” standard in their rulings, some are sympathetic to a litigator’s insistence on an in-person deposition while others are clearly not.
Good Cause Must Always Be Shown
Recently, one magistrate judge sidestepped the “good cause” standard and ordered several depositions in a multidistrict products liability action be conducted remotely because, in the magistrate’s view, it would be efficient. In In re Chrysler Pacifica Fire Recall Prod. Liab. Litig., No. 22-3040 (E.D. Mich.), the magistrate judge initially found that numerous named plaintiffs had failed to demonstrate good cause for a protective order sparing them the inconvenience of traveling to the Eastern District of Michigan for in-person depositions. The magistrate judge rejected the plaintiffs’ argument that the generalized COVID-19 concerns raised by traveling to Michigan could supply the necessary “good cause” for a protective order.
However, the magistrate judge continued, considerations of litigation efficiency can support a protective order requiring remote depositions. “Litigation efficiency is of special concern in a collective action,” the magistrate judge noted, adding: “For litigation efficiency here, the Court grants plaintiffs’ motion to protect them from having to travel to this district to be deposed.”
The magistrate judge also concluded that an order authorizing remote depositions was supported by Rule 26(b)(2)(C). That rule permits courts to limit the extent of discovery when the same information can be obtained from a less burdensome and expensive source. In this case, the magistrate ruled, that a less burdensome source is a remote deposition in the plaintiffs’ home district.
The defendant filed objections to the magistrate judge’s order and largely prevailed. The district court, in In re Chrysler Pacifica Fire Recall Prod. Liab. Litig., No. 22-3040 (E.D. Mich., June 18, 2024), rejected both of the magistrate judge’s rationales for ordering remote depositions. The court ruled that the magistrate judge’s reliance on Rule 26(b) was clearly erroneous. The relevant rule for protective orders is Rule 26(c), which deals with the scope of discovery. Rule 26(b), it said, authorizes courts to limit the “frequency” or “extent” of discovery, provided that the same information reasonably may be obtained from “other sources” that are more convenient or less expensive to produce.
The court observed along the way that the magistrate’s order, in effect, authorized a protective order based on mere convenience and cost considerations. Whereas, it noted, Rule 26(c) requires a showing of “good cause” — a significantly higher standard. In this case, the magistrate judge’s order directing depositions to be conducted by Zoom video conferencing was a protective order under Rule 26(c), not an order limiting the “extent” or “frequency” of discovery under Rule 26(b)(2)(C). Wrapping up, the court wrote:
The fact that depositions by remote means may be an economical and appropriate tool in some instances, at least where the parties agree on the means, or where extraordinary circumstances such as the medical infirmity of a deponent make an in-person examination unreasonably risky, does not mean that good cause has been shown to compel the taking of depositions by remote means across the board for all plaintiffs, based merely on the routine inconvenience and expense that is incident to participation in litigation by any party who chooses to file suit in a forum distant from their residence.
Giving a small win to the plaintiffs, the court found that several plaintiffs had in fact demonstrated “good cause” for conducting their depositions in their home district, based on evidence of particularized, compelling health concerns and family obligations. The court didn’t find good cause to hold the depositions remotely, however; it left that issue for the litigators to work out.
Key Takeaways
So what guidance can litigators glean from this ruling?
First, there’s no getting around Rule 26(c)’s requirement that “good cause” must be demonstrated whenever a party seeks to have a deposition — which was noticed to be held in person — be conducted remotely instead.
Second, assertions of “good cause” must be rooted in the particular circumstances of a particular deponent. Generalized, blanket assertions of hardship will not support a protective order covering all depositions.
Third, health concerns and family obligations can supply the necessary “good cause” for a protective order limiting travel to a distant deposition location. In this case, the district court ruled that the following circumstances supplied “good cause” for a protective order:
- Chronic pain that makes travel difficult
- Status as the sole caretaker of an older, infirm relative
- Recovery from serious injuries sustained in an auto accident, and related need to obtain regular physical therapy
- Status as sole caretaker for two autistic children
- Status as sole caretaker for six teenagers
Fourth, courts will assign weight to noticing counsel’s election to conduct a deposition in person. Remote depositions may present challenges that some attorneys struggle to overcome. (One court observed that it would “approach legal malpractice” to conduct remotely a deposition intended to investigate suspicions of perjury in prior depositions. See Radiant Glob. Logistics, Inc. v. BTX Air Express of Detroit, LLC, No. 18-12783 (E.D. Mich., April 22, 2020)).
Fifth, and finally, parties will have a difficult time convincing the trial court that it would be unnecessarily burdensome to appear for a deposition in the forum in which they filed suit.
Outside the federal system, some states have adopted their own “good cause” standards and presumptions favoring remote depositions. For example, new Washington court rules place the burden to show good cause on the party opposing a remote deposition. Regardless of jurisdiction, however, the best course of action in most cases is for counsel to work out pretrial discovery matters — including depositions — with the opposing party in a manner that promotes the efficient and speedy disposition of the case matter at hand.
