As the COVID-19 pandemic continues, courts across the country are responding by modifying their standard procedures in the hopes of mitigating the spread of the virus. While some judges are issuing orders mandating the use of remote depositions, others are stopping short of such directives. The sample of orders reviewed demonstrates that courts are exercising their discretion in determining whether depositions should proceed in person or remotely. Individual jurisdictions are weighing the risk of in-person depositions based on local transmission rates of COVID-19 and evolving public health guidance. Litigants should keep apprised of what measures specific jurisdictions have in place that may impact in-person depositions due to COVID-19.
COURTS ARE EXERCISING THEIR DISCRETION UNDER RULE 30 TO MOVE CASES FORWARD
Federal Rule of Civil Procedure 30(b)(4) provides that “[t]he parties may stipulate – or the court may on motion order – that a deposition be taken by telephone or other remote means.” Thus, remote depositions have always been permitted under the Federal Rules. Judicial discretion in the wake of COVID-19 has led to a wide variety of orders concerning remote depositions.
Some judges have issued blanket guidance for all cases on their respective dockets. However, not all forms of blanket guidance have been equal. Some courts are issuing guidance that prohibits the use of in-person depositions, while others are opting for a more flexible approach which permits, but does not mandate, remote depositions. For example, in the Eastern District of Texas, Chief Judge Gilstrap’s sua sponte order mandated that “no in-person depositions [will be] conducted during the pandemic.” Conversely, in the Southern District of New York, Judge Liman issued COVID-19 Emergency Guidelines, which allow “depositions [to] be taken via telephone, videoconference, or other remote means,” but did not go so far as to prohibit in-person depositions.
In contrast, other courts are assessing the need for remote depositions on a case-by-case basis. Of the cases reviewed, courts that either mandated or permitted remote depositions focused on one or more of the following factors: age and health of potential deponents and their immediate family members, the need for deponent or other parties to travel in or out of a COVID-19 hot spot, corresponding delays associated with quarantining and other safety measures, and parties’ experience and familiarity in responding to COVID-19. See Sonrai Sys., LLC, v. Anthony M. Romano, Geotab, Inc., & Heil Co., No. 16 CV 3371, 2020 WL 3960441 (N.D. Ill. July 13, 2020) (ordering remote depositions in consideration of the need to quarantine for 14 days after successfully traveling between areas experiencing a surge of COVID-19 cases); Joffe v. King & Spalding LLP, No. 17-CV-3392 (VEC), 2020 WL 3453452, at *6-8 (S.D.N.Y. June 24, 2020) (ordering remote depositions to prevent parties from having to cross state lines, sometimes by plane, to reach the location of an in-person deposition); Learning Resources, Inc. v. Playgo Toys Enterprises Ltd, et al., No. 19-CV-00660, 2020 WL 3250723, at *1 (N.D. Ill. June 16, 2020) (allowing remote depositions on account of increasing transmission rates, the need for attorneys to travel between COVID-19 hot spots, and the fact that Defendant’s counsel and his close family fell within a high risk category); Grano v. Sodexo Mgmt., Inc., No. 18CV1818-GPC(BLM), 2020 WL 1975057, at *4 (S.D. Cal. Apr. 24, 2020) (finding that remote depositions were appropriate where all parties were on notice of the state of emergency declaration in California); Vasquez v. City of Idaho Falls, No. 4:16-CV-00184-DCN, 2020 WL 1860394, at *8-9 (D. Idaho Apr. 13, 2020) (ordering a remote deposition for a deponent who would have been required to cross state lines, was at unique risk due to advanced age and diabetic condition, and resided in a state currently under a shelter-in-place order).
Not all courts are exercising this discretion to allow remote depositions. In at least one case, the court denied a motion for a protective order prohibiting an in-person deposition. Manley v. Bellendir, No. 18-CV-1220-EFM-TJJ, 2020 WL 2766508, at *2-4 (D. Kan. May 28, 2020). The court held that the deponent had failed to allege a medical condition that would place him at heightened risk for contracting the virus, it was possible to ensure social distancing measures during the deposition, and all in attendance would be required to wear full protective equipment, including masks and gloves. In this specific instance, the court effectively held that remote depositions were not appropriate where in-person depositions could proceed with adequate safety precautions. If and when the public health concerns abate, courts may begin to issue similar orders favoring in-person depositions. Further, parties should remember that the current pandemic will not automatically entitle litigants to remote depositions.
PREVENTING JUDICIAL INERTIA
Albert Einstein famously noted that “[n]othing happens until something moves.” Some courts appear to be heeding this adage. Specifically, the impetus for some of the decisions detailed above permitting or mandating remote depositions was to propel pending cases forward. Consistent with surveyed cases, courts are less inclined to extend discovery schedules. See e.g., Grano v. Sodexo Mgmt., Inc., No. 18CV1818-GPC(BLM), 2020 WL 1975057, at *4 (S.D. Cal. Apr. 24, 2020) (ordering the use of remote depositions to keep previously accepted discovery schedules on track); Velicer v. Falconhead Capital LLC, No. C19-1505 JLR, 2020 WL 1847773, at *2 (W.D. Wash. Apr. 13, 2020) (finding no good cause to extend scheduling order deadlines by ninety days and urging the parties to consider remote depositions); but see United States for use & benefit of Chen v. K.O.O. Constr., Inc., No. 19CV1535-JAH-LL, 2020 WL 2631444, at *2 (S.D. Cal. May 8, 2020) (extending the fact discovery deadline by one month “for the sole purpose of completing deposition remotely”). In Sonrai Sys., LLC, v. Anthony M. Romano, Geotab, Inc., & Heil Co., No. 16 CV 3371, 2020 WL 3960441 (N.D. Ill. July 13, 2020), the court reasoned that remote depositions are a viable alternative to the compounding delay associated with mandatory quarantine protocols observed after in-person depositions.
This survey of court decisions suggests that parties will continue to seek remote depositions for at least the foreseeable future. Without dispositive guidance across all jurisdictions, some courts consider the following factors in the assessment of whether remote depositions should proceed: age and/or underlying health conditions of deponents and attorneys, travel logistics and relevant state guidance for combatting COVID-19. Even as some states begin to ease their social distancing restrictions, as of the writing of this article, it remains unclear when the COVID-19 pandemic will truly end. As we have noted before, remote depositions are a viable alternative to the in-person format. Litigants should be mindful that many courts intend to keep their dockets moving forward and have largely found remote depositions to be a successful tool in achieving this goal. As judicial proceedings gradually warm to the use of remote depositions, litigants should prepare for these virtual practices to persist beyond the current pandemic.
In spite of social distancing requirements established by the COVID-19 pandemic, courts are now more likely to expect that litigants have been diligently keeping up with various pretrial tasks. While remote depositions are not a new aspect of litigators’ practice, the COVID-19 pandemic has forced many to adopt this previously underutilized aspect of discovery proceedings. Wolf Greenfield attorneys have experience with taking and defending depositions in such a remote format. We’ve reflected the insights they gleaned from their preparation for and participation in these remote depositions below. Remote depositions are a cost-effective and timely solution to the question presented by widespread social distancing measures. In a post-pandemic economy, such financial considerations may be of the utmost importance to clients and attorneys alike.