Federal court finds good cause against and rejects strict entitlement to in-person deposition.
Remote technology has challenged the legal industry to adapt. Where the law is often seen as slow to change, real-world demands for efficiency, productivity, flexibility, and all-around common sense dictate that attorneys properly manage time, costs, and resources to better serve the interests of their clients. It’s not surprising that, as courts continue to settle on a new standard for post-pandemic procedure, case law will begin to reflect changing sentiment with respect to legal technology and the best path forward. One recent federal case presents what may be a shifting disposition in favor of remote depositions.
In Kamradt v. Esurance Insurance Company, the United States District Court for the Western District of Washington articulated that, when faced with a motion for a protective order, a party is not strictly entitled to an in-person proceeding. The facts of this case alone demonstrate a change in common legal practice. During the pandemic, as courts weighed whether or not public health and safety warranted a departure from default in-person depositions, parties often sought protective orders to avoid remote appearances. However, Kamradt represents somewhat of a role reversal. In this instance, the plaintiff sought to obtain a protective order against an in-person deposition, perhaps signaling a world where remote depositions are not only more common, but perhaps preferred over in-person proceedings given the circumstances at play.
For Kamradt, those circumstances reflect familiar concerns regarding cost and accessibility that continue to drive a demand for remote technology today. Rejecting Defendant’s motion to compel discovery as unpersuasive and premature, the district court granted Plaintiff’s motion for a protective order against an in-person deposition, holding that concerns of travel expense, unpaid leave from work, and unique concerns of potential COVID exposure constituted good cause under Federal Rules of Civil Procedure 26(c). Consequently, the court ordered for the deposition to either take place remotely or, alternatively as a compromise, in person at the office of Plaintiff’s counsel, a location which was considerably closer than the location originally noted by the defendant.
One aspect of the Court’s reasoning speaks to the paradigm shift that may be occurring with respect to remote depositions. Whereas in-person depositions were often considered a default, Kamradt presents a forward-thinking reading of the rules of civil procedure, challenging presumptions that favor the status quo:
“Even before the advent of robust videoconferencing tools, and their widespread adoption in litigation throughout the COVID pandemic, the federal rules contemplated a party’s preference against remote depositions giving way in the face of a good-cause showing. See Fed. R. Civ. P. 26(c), 30(b)(4). The idea that the party noting a deposition has a strict entitlement to require the deponent to appear in person (Dkt. No. 19 at 4) is simply an atextual reading of the rules.”
It is worth noting that, since the pandemic, the Washington Supreme Court issued an order establishing a presumption for remote depositions. Perhaps serving as an influence for Kamradt, Section 3(a) of this Washington Supreme Court order flips the presumption in favor of remote depositions:
“With respect to discovery, depositions shall be performed remotely absent agreement of the parties or a finding of good cause by the Court to require the depositions be performed in person.”
Perhaps it shouldn’t come as a surprise that a case such as Kamradt, although federal, would see similar value in remote depositions, demonstrating a trust in remote technology that allows flexibility and saves costs.
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* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
