Federal court distinguishes “pre-pandemic” concerns, allows remote depositions.
It may seem like ages ago, but there was a time when legal professionals saw remote depositions as little more than a temporary fix to accommodate social distancing during the pandemic. Much discussion centered on whether remote technology was a passing fad or an investment for the future. As legal professionals attempted to find their bearings, many wondered whether they would return to the familiar or embrace a new path with legal technology. For some, a return to normalcy meant a return to dreaded travel expenses, time constraints, and other hassles too often associated with in-person depositions. But increased familiarity and comfort with remote depositions shows that some customs can be left in the past.
Case law recognizes advancements in remote technology
Remote depositions challenge the assumption that in-person proceedings should be the default way to conduct business. January’s Devising Depositions blog post highlighted a federal case that rejected an argument for strict entitlement to in-person depositions. Case law demonstrates that courts now realize legal technology can provide a more flexible, cost efficient approach to legal proceedings. In this installment of Devising Depositions we’ll take a look at yet another federal case that hints at the judiciary’s willingness to move away from concerns of the past and embrace a present that values remote depositions.
In McCabe v. Albright, a copyright case out of the United States District Court for the District of Columbia, the court considered competing Rule 37 motions for sanctions where both parties failed to attend their respective depositions. The plaintiff, who had moved out of the United States and expressed her intention to become a Russian citizen, offered to sit for a remote deposition rather than attend an in-person proceeding in Washington D.C. The defendant, herself a scheduled deponent, refused to appear for her own deposition unless the plaintiff agreed to attend the in-person deposition.
The court rejected the defendant’s motion for sanctions, as the record showed she failed to provide proper notice. However, the court went further in its analysis, citing case law that declared remote depositions were not only an adequate substitute for in-person depositions, but were also encouraged due to cost savings:
“Ample case law recognizes that a videoconference deposition can be an adequate substitute for an in-person deposition, particularly when significant expenses are at issue or when the depositions will cover a limited set of topics.” [McCabe quoting U.S. v. One Gulfstream GV Jet Aircraft Displaying Tail No. VPCES, 304 F.R.D. 10 (D.D.C. 2014)]. ‘[C]ourts encourage [videoconference depositions], because doing so minimizes travel costs and permits the jury to make credibility evaluations not available when a transcript is read by another.’” [McCabe quoting Gee v. Suntrust Mortgage, Inc., 2011 WL 5597124 (N.D. Cal. Nov. 15, 2011)].
Applying this reasoning to the issue at hand, the court further referenced case law to see remote depositions as a legitimate way forward:
“Should the Court require McCabe to travel, she would bear ‘the expensive burden of several cross-country flights, hotels and associated costs’ of making an international trip See Pl.’s Opp’n at 1. And any concerns about assessing McCabe’s credibility are obviated by ‘modern videoconference technology [that] allow[s Albright] to observe [McCabe] and ask follow up questions as is necessary to obtain the relevant testimony.’” [McCabe citing One Gulfstream G-V Jet Aircraft, 304 F.R.D at 18)].
Court distinguishes pre-pandemic interpretation of case law
The court also turned its attention to the assertion that, as a result of the plaintiff having filed her action in the United States District Court for the District of Columbia, the defendant was entitled to an in-person deposition. This argument would have applied the reasoning found in Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V, which determined that “A party that chooses to initiate litigation and invoke the legal protections of the forum should expect to appear for deposition in that jurisdiction.” The defendant also sought to align her circumstances with another case, Buaiz v. United States, which concluded that “[Defendant’s counsel] can legitimately insist on an in-person deposition and can also insist that it be taken in D.C. where the suit is pending.”
However, the court disagreed with the defendant’s application of case precedent. Rather, Magistrate Judge Zia M. Faruqui distinguished the defendant’s interpretation as a product of pre-pandemic thinking. Whereas such arguments may have held more sway prior to COVID-19, the court recognized that legal technology has evolved to create an adequate substitute for in-person proceedings. Consequently, the court determined that Paleteria and Buaiz were not applicable to the present case:
“[T]hese cases do not control. Both cases were pre-pandemic when videoconferencing was rare and clunky. Indeed, the alternative in Buaiz was to take the deposition by telephone, an inadequate substitute. See 2007 WL 9770727, at *1. . . Other similar cases also do not reckon with the modern adequacy of videoconferencing software.”
Indeed, the old ways of planning and conducting depositions have less influence in a world that appreciates the evolution of remote technology. Attorneys have more flexibility to accommodate their busy schedules and meet client expectations, free from travel, hotel, and venue expenses.
A forward-thinking remote deposition service for forward-thinking attorneys
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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.
