As normalcy returns, courts may require more than COVID-19-related concerns to justify a change in deposition location.
As society grows more accustomed to life with COVID-19, so too has our judicial system. This is both good and bad news for remote depositions. The good news is that judges are no strangers to the health and safety benefits virtual proceedings provide. The bad news, however, is that, given the circumstances of a case, merely mentioning “COVID-19” might not be enough to change the location of a proceeding or turn an in-person deposition remote. Extenuating circumstances and increased familiarity with safety measures such as face masks and social distancing may afford greater leeway for courts to enforce in-person appearances so long as the deposition is properly noticed.
In Punturo et al. v. Kern, et al., a matter stemming from a noncompete dispute that later involved allegations of antitrust and defamation, the defendant, Attorney Brace Kern, cited COVID-19-related concerns on appeal of a lower court decision denying his motion for a protective order to avoid an in-person deposition. This motion was made despite the plaintiffs serving notice for an in-person deposition that allowed face masks and sufficient room for social distancing. Mr. Kern’s COVID-19 concerns centered on his daughters who were too young to receive vaccinations at that time. However, the trial court was not swayed, instead reasoning that Mr. Kern’s situation was not unique and that little children are the least exposed to COVID-19 of any age group. Additionally, Mr. Kern could not identify any special vulnerabilities his daughters had to COVID-19. The trial court then turned to a related matter, the plaintiffs’ contention that voluminous exhibits necessitated an in-person appearance. On that point, the trial court agreed. Despite acknowledging that a Zoom deposition could suffice, the trial court shared that it no longer conducted non-jury trials by Zoom due to certain difficulties and complexities with the platform. Finding no abuse of discretion, the Michigan Court of Appeals affirmed the lower court order that the in-person deposition could take place where the parties involved agreed to wear masks and remain at least six feet apart.
Ironically, another instance where a court rejected COVID-19 concerns involved competing requests for in-person depositions. In Monolithic Power Systems, Inc. v. Dong, et al. v. Meraki Integrated Circuit (Shenzen) Technology, Inc., a matter surrounding allegations of misappropriated confidential information and violations of patent law, the court for the Northern District of California acknowledged that assessing the credibility of two non-resident defendants and extensive document review warranted in-person depositions. However, despite the plaintiffs’ COVID-19-related concerns, the court ordered that any in-person deposition would take place in China, the defendant corporation’s principal place of business. Plaintiffs, citing various COVID-19 travel and safety restrictions, wanted to conduct in-person depositions in California. Nonetheless, the court ordered that any in-person deposition would take place in either Macau or Hong Kong. The court reasoned that California in-person depositions were not appropriate given the “burdens and equities” of the defendants at issue. In addition to the principal place of business, the court considered extenuating circumstances such as the defendants being non-residents who had not visited the United States in several years.
Another case, Monterey Bay Military Housing LLC, et al. v. AMBAC Assurance Corporation, et al., which stems from a 2017 RICO action, considered an additional factor in ordering remote depositions despite health and safety precautions offered for in-person proceedings. Specifically, the District Court for the Southern District of New York noted that attorneys tested positive for COVID following depositions in this same case on at least two separate occasions.
Finally, in Stapleton v. Prince Carpentry, Inc. the United States Court for the Eastern District of New York enforced a properly noticed in-person deposition despite acknowledging that a remote appearance could afford counsel adequate opportunity to properly assess witness credibility. The court reasoned that the “speaker view” found in many video conference platforms, “provide[s] the questioner with a much closer view of a witness’s reactions, responses, facial expressions even arguably better than an in-person deposition would.” The court also questioned the effectiveness of using an in-person proceeding to assess credibility when the witness is wearing a mask. However, despite apparent misgivings, the court ordered the in-person deposition on the condition that the witness wear a clear mask so as not to obstruct the witness’s demeanor.
As with the rest of the country, courts continue to grapple with finding ways to negotiate COVID-19’s new normal. Although these cases don’t necessarily reflect a major trend in jurisprudence, those who wish to secure a remote appearance despite a properly noticed in-person deposition may benefit from a more thorough justification than “COVID-19 concerns.” Are there health concerns particular to the parties involved? Is the rate of COVID-19 infection considerably high in a given county or region? Do extenuating circumstances necessitate an in-person hearing despite COVID-19 concerns? What role might extensive exhibit review and/or credibility assessment play in supporting or opposing a request for remote depositions? If the in-person deposition is properly noticed, a successful motion for remote depositions might anticipate such questions.
Of course, a lot of this can be avoided where scheduling attorneys choose to properly notice remote depositions themselves. If you’re thinking about scheduling a remote deposition, consider Readback, a remote, non-stenographic service geared to provide an empowering deposition experience. Want to learn more? Visit our website and read our Frequently Asked Questions to see how Readback is a great modern tool for modern attorneys.
*Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
