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Why Plaintiff’s Lawyers Must Insist upon Remote Video Depositions

While COVID-19 is a pandemic, it is not a reason to delay remote video depositions.  Lawyers must continue conducting discovery to the maximum extent feasible by permitting proceedings to be conducted using technology, including court conferences and remote video depositions.  During this past week, Judges and lawyers throughout New York have been conducting remote video conferences and depositions and will continue doing so.

The Law In New York regarding Remote Video Depositions

Remote video depositions—and even trial testimony via video--can be ordered by the court, over the objection of the parties. Gabriel v. Johnston’s L.P. Gas Serv. Inc., 104 A.D.3d 1262, 960 N.Y.S.2d 691 (4th Dep’t 2013).  CPLR section 3101(a) permits the court to issue a protective order “regulating the use of any disclosure device”.  

Even prior to the pandemic, courts have ordered parties to proceed with remote video depositions.  In Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 916 N.Y.S.2d 525 (2nd Dep’t 2011), the Second Department reversed the lower court and granted the plaintiff’s motion for a protective order, directing the deposition of plaintiff to be conducted by electronic means. The Appellate Division held that the lower court “improvidently exercised its discretion” in denying the plaintiff’s cross-motion that his deposition be conducted via remote electronic mean. Id.

Similarly, in Feng Wang v. A & W Travel, Inc., 130 A.D.3d 974,14 N.Y.S.2d 459 (2nd Dep’t 2015), it was held that plaintiff could appear for a continued deposition remotely.  In this action for personal injuries, plaintiff, a passenger on a bus, personally appeared for a deposition, which was not completed. Prior to rescheduling, plaintiff moved to China to reside with family members.  The Appellate Division in Feng Wang held that the lower court abused its discretion in denying the plaintiff’s motion for a protective order directing that his deposition be conducted by remote electronic means.

As long as the witnesses have a computer and internet connection at home, the remote video deposition can be conducted without leaving their home. There is no inconvenience or health hazard posed by remote video depositions.

Proposed Order for Remote Video Depositions

During the ongoing COVID-19 pandemic, there is a need to cooperate regarding the procedural and administrative formalities for the conduct of depositions.  As permitted by section 3113(b) of the Civil Practice Law and Rules and 22 N.Y.C.R.R. section 202.15, depositions may be taken by means of simultaneous audio and visual electronic recording.  For purposes of this rule, a deposition taken by such means is taken in the judicial district and at the place where the deponent is to answer questions.

In light of the foregoing, the Court orders as follows:

  1. Either party may conduct depositions in this case by remote means (“remote depositions”), as further described in the sections below.
  2. Neither party will object to the use of a transcript from a remote deposition solely on the basis that the deposition was taken from a remote location—or on the basis that the witness was sworn under oath by someone at a remote location—provided that the transcript was generated by a duly licensed court reporter who also participated in the remote deposition.
  3. Each participant (i.e., lawyers, witness, parties and court reporter) will be in a different location from each other participant, and none will be permitted or required to travel to be in physical proximity to any other participant for the remote deposition.
  4. The party noticing the deposition will select and be responsible for the videoconferencing platform (or service) for conducting that particular remote deposition.
  5. Counsel will make a good faith effort to identify and exchange pre-marked exhibits that they anticipate using at a deposition by email or other secure digital means (e.g., Dropbox, Google Drive, etc.) no later than 30 minutes before the commencement of a remote deposition. However, this provision does not preclude counsel from introducing an exhibit at the deposition that was not exchanged beforehand.
  6. Pre-marked exhibits will be labelled with reference to the party who anticipates utilizing the exhibit (e.g., Defendant’s Exhibit 1, Plaintiff’s Exhibit 1, etc.).
  7. Each participant (i.e., lawyers, witness, parties, and court reporter) will make reasonable efforts to participate in a test of the videoconferencing platform at least 24 hours before the date on which the remote deposition is to take place.
  8. While the remote deposition is being conducted, none of the participants may utilize private messaging to communicate with the witness whose remote deposition is being taken.
  9. Notwithstanding section 8 above, nothing in this order prohibits private messaging during a break in the remote deposition or while the parties are off the record.
  10. Either party may make a recording (video, audio or both) of all or some of the remote deposition, provided that the party making the recording will transmit a copy of the full recording to the other party within ten business days after the completion of the remote deposition.
  11. The videotaped deposition shall depict the witness in a waist-up shot, seated at a table.  The parties further understand that due to technological and practical limitations, the videotape of a remote deposition may depict attorneys, court reporters, or individuals other than the witness.  
  12. The cost of videotaping or audio recording shall be borne by the party who has served the notice for the videotaped or audio recording of the deposition.
  13. The use of the videotape recordings of depositions at the trial shall be governed by the provisions of the Civil Practice Law and Rules, and all other relevant statutes, courts rules and decisional law, relating to depositions and relating to the admissibility of evidence.
  14. Otherwise as set forth in the foregoing sections of this order, a remote deposition will be conducted as otherwise provided in the CPLR and New York’s Uniform Rules of Trial Courts.

Dated:  April __, 2020

SO-ORDERED!

______________________________

Hon. Christopher Jones


Photo by Marcus Aurelius from Pexels

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