Give me a reason: Federal case says disputed remote depositions require legitimate cause.
All things being equal, remote depositions work best when both parties agree to stipulation. The deposing party serves notice stating its intent to conduct the deposition remotely, the opposing party cooperates, and everyone’s happy. But things don’t always play out so smoothly in practice. Whether a matter of sincere objection or litigious gamesmanship, attorneys can find themselves at odds over whether or not a remote deposition should move forward. So what happens if opposing counsel objects to a motion for remote deposition?
Our last installment in this series examined how simply relying on COVID-19 might not be enough to secure a remote deposition as courts adapt to a new normal. This month, we’ll look at a federal case that outlines the shifting burdens courts might apply to competing motions for remote depositions on one hand and motions for protective orders on the other. Ultimately, the court’s decision may boil down to whether the moving party’s legitimate reason for a remote deposition outweighs the prejudicial impact the opposing party claims will result if the motion is granted.
In the federal case of Christopher Phillip Mosley v. James W. Friauf, a case alleging legal malpractice, the U.S. District Court for the Eastern District of Tennessee outlined a weighted test for deciding contested motions for remote depositions. Referencing case precedent, the court applied shifting burdens to the parties’ competing claims. Upon objection, the moving party must show a legitimate reason for the court to grant a Rule 30(b)(4) motion for remote deposition. Once this threshold has been met, the court will turn to the objecting party to demonstrate sufficient prejudicial impact to warrant a Rule 26(c) protective order.
The court’s application in Mosley ultimately favored the plaintiff’s contention that an in-person deposition would cause significant financial burden. In making its decision, the court considered a number of factors to conclude the plaintiff presented a legitimate reason to allow a remote video deposition over the defendant’s objection. Quoting Loyless v. Oliveira as case precedent with respect to remote depositions due to financial burden, the court examined, “[T]he amount of money at stake in the case, the financial means of the distant party, the complexity of the issues involved, and whether the issues will turn on the deponent’s credibility.” The court determined the amount in controversy, at least $500,000, to be significant and combined this consideration with evidence of the plaintiff’s purported financial hardship and claim that an in-person deposition would cost him a week’s worth of income. Finally, the court agreed with the plaintiff’s contention that the type of case involved as well as the fact that both parties were already acquainted made questions of credibility a moot issue. As for the opposition, the court found the defendant’s claim that the plaintiff’s concerns were exaggerated to be unpersuasive. In other words, given the circumstances, the plaintiff had a more compelling argument to conduct a remote deposition than the defendant had to avoid one.
It stands to reason that attorneys can draw important inferences from decisions like Mosely. Cooperation and professional courtesy can go a long way. But at the end of the day, litigation is an adversarial process. It might seem obvious, but courts may seek persuasion when it comes to 30(b)(4) motions for remote depositions. And if opposing counsel has a stronger argument for conducting matters in person, that might sway the court to issue a protective order, potentially putting the moving party at a disadvantage.
So how might this all factor into your next deposition? Well, when seeking stipulation, keep in mind that it helps to choose a deposition reporting service that checks the necessary boxes to allay misgivings from the court or opposing counsel. Readback is a remote, non-stenographic service that utilizes its Multi-Intelligence Service Team to provide an empowering deposition experience. State-of-the-art AI technology works alongside a human Guardian and team of human transcribers to make sure the proceeding runs smoothly to produce an accurate and truthful verbatim transcript. Whether a matter of sharing exhibits, reading back testimony, or addressing technical questions, Readback is there to work with all parties involved. To learn more about this game-changing service, visit our website to read our Frequently Asked Questions page. Because you shouldn’t be caught off guard when the judge asks for your reason for remote depositions. You’ve got a reason with Readback.
*Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
