Today’s litigators are advocates and strategists, excelling in the application of rules, the art of negotiation, and the power of oral argument, and they use these tools to achieve the best possible outcomes for their clients. In the age of COVID-19, with stay-at-home orders in effect across much of the nation, litigators may have lost one of their most important tools: the in-person deposition. Anticipating that in-person depositions will return in the near future, some litigators have filed stipulated motions to extend schedules and deadlines, to provide time to permit the return. Such efforts have been rebuffed by several courts, which have entered orders requiring that depositions be taken by remote means and according to schedule to keep cases moving during this period of enormous uncertainty. If this trend continues, parties and their counsel should no longer expect to be able to conduct in-person depositions, and, instead get accustomed to taking depositions remotely.
The Rules Permit Remote Depositions
Under Federal Rule 30(a)(1),[1] “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” This includes organizations, which can be deposed through designated witnesses under Rule 30(b)(6). The federal civil rules also permit remote depositions through use of audio-video technology. Rule 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.” The Advisory Committee Notes[2] underscore that this provision “authorize[d] the taking of deposition not only by telephone but also by other electronic means, such as satellite television, when agreed to by the parties or authorized by the court.”
To be sure, other requirements of the civil rules must be satisfied for a valid virtual deposition to take place. One of these requirements, set forth in Federal Rule 30(b)(5), is the requirement that unless the parties stipulate otherwise, the deposition must be “conducted before an officer appointed or designated under Rule 28,” and that the deponent be placed under oath by that officer. One legal question is whether this rule is satisfied when the witness and officer are both attending virtually. While older cases hold that the officer needs to be physically present with the witness, recent authority holds otherwise. For example, the Southern District of New York explained in Sinceno v. Riverside Church in the City of N.Y.:[3] “For avoidance of doubt, a deposition will be deemed to have been conducted ‘before’ an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants.”
The judicial acceptance of remote depositions is substantially complete. The Federal Civil Rules Handbook[4] states that, “Generally, leave to take depositions by remote means will be granted liberally.” Indeed, most cases have held that the party opposing a remote deposition bears the burden of showing that it will suffer prejudice.[5] Therefore, even prior to the COVID-19 pandemic, courts granted motions to compel remote deposition motions absent a showing of prejudice.[6]
The Courts are Requiring Remote Depositions
The state of emergency declared by the U.S. government, state and local government lockdown orders, and CDC guidance including social distancing to mitigate the spread of COVID-19 impose profound strains on the administration of justice by our courts. One tool available to parties and courts in civil cases is to push depositions into the virtual realm, and courts—if not all parties—seem to have fully embraced this tool.
Since the COVID-19 outbreak began in the U.S., federal courts across the country have routinely authorized virtual depositions when requested.[7] In SAPS, LLC v. EZcare Clinic, Inc.,[8] the court held, “This court will not require parties to appear in person with one another in the midst of the present pandemic. Nor is it feasible to delay the depositions until some unknown time in the future.”
Two recent cases highlight the policy behind these orders compelling virtual depositions—the swift administration of justice.
In Ogilvie v. Thrifty Payless,[9] the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”
In United States ex rel. Chen v. K.O.O. Constr., Inc.,[10] the Southern District of California court also denied the parties’ joint motion to extend the discovery deadline by 60 days in light of lockdown orders related to COVID-19. The parties justified the motion in part on the ground that some depositions needed to be taken in person, because they would involve review of detailed project plans and architectural drawings that would be difficult to review by videoconference. The court flatly rejected this argument as a bar to virtual depositions. “Other courts have found that exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently.”[11] As for the policy rationale for denying the motion, the Court said:
The primary reason the parties seek the continuance is because they hope the physical distancing and stay-at-home orders required by the current pandemic will be lessened to allow for in-person depositions in the near future. This, however, is pure speculation. It is not feasible for the Court to extend deposition deadlines until a time when they can be safely conducted in person because no one knows when that will occur and there are alternatives [i.e., remote depositions].[12]
In short, courts are plainly forcing parties to use virtual depositions in their cases, in some cases kicking and screaming, during the pandemic. Resistance seems futile at this point. Instead, litigation counsel and their clients should embrace the new reality of taking depositions by remote means while social distancing subsists.
