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As every litigator is no doubt aware, COVID-19 has caused a seismic shift in the manner of taking depositions. Federal Rule of Civil Procedure 30(b)(4) provides that “parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” In line with this provision, at the outset of the pandemic, the legal profession was forced to pivot and adapt to a virtual environment on a scale never before experienced, and the judiciary largely endorsed this shift. In an industry often hesitant to adopt new technology, overnight the legal profession shifted to the near-universal adoption of conducting depositions by videoconference.
While video depositions have permitted the legal profession to carry on in some capacity during stay-at-home orders, there are certainly disadvantages to the format. In particular, courts have noted that remote depositions “preclude in-person confrontation and the assessment of the deponent’s demeanor, affect, non-verbal responses, and facial expressions.” Huddleston v. Bowling Green Inn of Pensacola, 333 F.R.D. 581, 586 (N.D. Fla. 2019). Moreover, “[a] remote deposition offers no guarantees or safeguards against improper conduct by the witness such as crib notes or signaled answers.” Kean v. Bd. of Trs. of the Three Rivers Reg’l Libr. Sys., 321 F.R.D. 448, 453 (S.D. Ga. 2017).
Fortunately for attorneys wishing to resume depositions in person, as it has become clear that the pandemic will be with us for the long term, courts have become less sympathetic to generic pleas of COVID-19 concerns as a basis for entirely avoiding sitting for an in-person deposition. Instead, courts are increasingly ordering deponents to appear in person with appropriate precautions in place.
Welsh v. Safeco Insurance Co. of America
In Welsh v. Safeco Insurance Co. of America, the U.S. District Court for the District of Utah considered whether the defendants in an insurance coverage dispute would be permitted to take the in-person depositions of the plaintiffs—who lived in Arizona—at the defense counsel’s office in Salt Lake City. No. 2:21-CV-82 RJS, 2021 WL 5566009, at *2 (D. Utah Nov. 29, 2021). The plaintiffs, both practicing physicians over the age of 60, sought a protective order directing that their depositions proceed by videoconference, citing their health conditions, age, and risks associated with COVID-19 when traveling to Utah.
The court, citing the plaintiffs’ status as “essential witnesses,” ultimately declined to order that the deposition proceed by videoconference. Instead, the court ordered that the plaintiffs could either (1) chose to travel to Utah for the deposition or (2) pay for the defense counsel to travel to Arizona for a deposition at a place closer to their home.
Dubuc v. Cox Communications Kansas, LLC
Similarly, in Dubuc v. Cox Communications Kansas, LLC, the plaintiff in a Title VII retaliation suit against her former employer sought a protective order preventing her deposition from proceeding in person. No. 21-2041-EFM, 2021 WL 4050855, at *1 (D. Kan. Sept. 5, 2021). The plaintiff argued that she should not be subjected to the risk of travel from her home in North Carolina to Kansas, citing her “moderate persistent asthma” as an aggravating factor militating in favor of a deposition by videoconference.
The court denied the plaintiff’s request, finding it significant that the plaintiff had failed to provide any evidence or representations regarding whether she was complying with the Centers for Disease Control and Prevention (CDC) guidelines concerning masking, social distancing, travel, and the like while living her daily life. Additionally, the court found that the defendant’s desire to take the plaintiff’s deposition in person was particularly valid in light of the fact that the plaintiff sought nearly $2 million in damages, plus attorney fees. Just as in Welsh, the court ordered the plaintiff to either appear for her deposition in the forum state or pay the expenses associated with the defense counsel’s travel to her home state for an in-person deposition; and it ordered that all CDC guidelines regarding masks, ventilation, and social distancing should be in place.
Tsien v. Board of Regents of the University System of Georgia
Likewise, in Tsien v. Board of Regents of the University System of Georgia, the plaintiff in an employment discrimination case sought to avoid travel from China to Georgia for his deposition. No. CV 121-008, 2021 WL 6617307, at *1 (S.D. Ga. Nov. 12, 2021), aff’d, No. CV 121-008, 2021 WL 6617308 (S.D. Ga. Dec. 20, 2021). In support of his request for a protective order, he cited the costs associated with travel, a generalized fear of infection, and a fear of losing employment in China due to a potential inability to return and his extended time away.
The court rejected these considerations, finding that travel and quarantine expenses do not constitute legitimate reasons or good cause to avoid an in-person deposition. In addition, the court ruled that the plaintiff, having instituted litigation in Georgia, would be required to bear the financial burden associated with such litigation. The court further found that the defendant’s concerns of “accurately assessing credibility [were] heightened,” particularly in light of the critical nature of the plaintiff’s own testimony due to the fact that it was an employment discrimination case. Id. at *3. Of particular interest, the district judge, in affirming the magistrate’s ruling, found it significant that the plaintiff chose to pursue litigation after the pandemic had begun.
In sum, while there is no one-size-fits-all approach to whether depositions should proceed in person or remotely, courts are increasingly receptive to ordering deponents to appear in person—with appropriate precautions in place, such as masking, disclosure of vaccination status, and social distancing.
James H. Gilbert is with Phelps Dunbar in New Orleans, Louisiana.
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