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Debate about Remote Depositions Remains Active Post-COVID

Morgan Hubbard

Debate about Remote Depositions Remains Active Post-COVID
Maskot via Getty Images

In Potter v. Smalley et al. No. GD 19-011580 (Pa. Ct. Comm. Pleas 2023), a case resulting from a fatal car crash in 2019, the plaintiffs issued a notice that the scheduled deposition for Lyft’s corporate representative designee would take place on May 12, 2023, in Pittsburgh, Pennsylvania. Lyft notified the plaintiffs that the designee would not be available until July 6. The parties agreed to this date and amended the initial notice of deposition to reflect the date change. One day before the new scheduled deposition was to occur, Lyft’s counsel notified the plaintiffs that the designee would be unable to appear other than remotely via Zoom. Plaintiff’s counsel offered five alternative dates in July. Lyft refused each of them, saying the designee would either appear remotely or the deposition would have to take place in the state of their principal place of business (in Tennessee).

Plaintiff’s counsel filed an emergency motion to compel deposition and grant sanctions on July 6, requesting that the court compel the designee to appear in the Pittsburgh office July 18 or 19. Lyft’s counsel filed a response to the motion on July 7, alleging that plaintiff’s counsel canceled the deposition via email. They also argued that Pennsylvania precedent supports holding corporate depositions in the location of the corporation’s primary place of business. The exhibited emails show a contentious back-and-forth between the parties’ counsel regarding the date of deposition.

The issue of whether depositions should be held in-person or remotely has been considered by courts across the country since the onset of the COVID-19 pandemic. In the first year of the pandemic, the U.S. District Court for the Southern District of Texas denied a motion for a protective order in a wrongful-death case requesting a delay for depositions so that they could take place in-person rather than virtually. Gonzalez v. Irontiger Logistics, 2020 WL 6218560 (S.D. Tex., Oct. 22, 2020). The court held that virtual depositions were sufficient even where a case may be complex, relying heavily on the plaintiff’s argument that time is of the essence in collecting depositions where memory may fade and impact the deponent’s ability to recall specific facts. Where the pandemic created a need for virtual depositions, the court systems and attorneys have supplied a reliable means for taking depositions remotely.

Though the COVID-19 emergency has ended, courts still allow for virtual depositions, and often leave the choice of in-person or virtual deposition to the parties. In 2022, the U.S. District Court for the Eastern District of New York denied a motion to compel a defendant to attend an in-person deposition in a location that was not the company’s principal place of business. Sabhani v. Mirage Brands, LLC., 2022 WL 16965009 (E.D.N.Y., Nov. 16, 2022). The court held that it was unreasonable to require a defendant to appear in-person in New York when the principal place of business was New Jersey. The plaintiff’s counsel had two options: (1) depose the defendant’s representative virtually or (2) depose the defendant’s representative in the state of its principal place of business.

Disputes regarding the appropriate venue and form for deposition is one that is more common since the use of virtual deposition became so streamlined. However, it is reasonable to understand why a party may want a certain witness to provide testimony in person. If that is the case, the above examples show that the party taking the deposition may have to be willing to travel to the witness. If the parties cannot come to a mutual agreement, courts will have to consider both sides’ arguments for efficiency, practicability, and justice.

While litigation can easily grow contentious if the parties so allow, attorneys must carefully weigh what battles they want (or are willing) to fight over. Placing multiple discovery issues before the court, in which the parties simply could not resolve themselves, is a recipe for an unhappy judge. Ultimately, miscommunication and/or a lack of effort to work things out with opposing counsel can result in untimely delays for your client and possible sanctions.