For litigators seeking to conduct a deposition remotely over an opponent’s objection, the watchword is “good cause.” Good cause is required to obtain permission for a remote deposition. A different kind of good cause is necessary to present remote testimony instead of live testimony in a federal courtroom. Yet another, often more permissive, kind of good cause must be shown to obtain permission for a remote deposition in many state courts.
During and after the COVID-19 pandemic, the term “good cause” was given a workout by litigators in hundreds of federal and state court proceedings. The result: Lawyers became skilled in the conduct of remote depositions, forever changing the way pretrial discovery is conducted in the United States, but the standard for obtaining a remote deposition over an opposing party’s objection did not change. And the standard for deciding whether to allow remote testimony in lieu of live courtroom testimony also remains the same, notwithstanding lingering worries about the increased risk of contracting COVID-19 in a courtroom environment.
Federal Courts Require Legitimate Reasons for Remote Depositions
In the federal courts, Federal Rule of Civil Procedure 30(b)(4) provides that a deposition may be taken by remote means with party consent or by court order. Most federal courts use a “good cause” standard to resolve requests for a remote deposition over the objection of an opposing party. The party requesting a remote deposition must show necessity through legitimate reasons. If this showing is met, then the burden shifts to the other side to make a particularized showing of prejudice if the deposition is conducted remotely.
In a recent case, Tsien v. Board of Regents of the University System of Georgia, No. 121-cv-008 (S.D. Ga. Nov. 12, 2021), the magistrate concluded that travel and quarantine expenses that would allegedly be incurred if the plaintiff was forced to travel from China to the Southern District of Georgia were not “legitimate reasons” or “good cause” to avoid an in-person deposition. The plaintiff elected to file his lawsuit in the Southern District, the magistrate noted, and the plaintiff presented no evidence showing that he was unable to bear international travel expenses.
The trial court in Dubuc v. Cox Communications Kansas LLC, No. 21-cv-2041 (D. Kan. Sept. 5, 2021), was likewise unpersuaded by another plaintiff’s argument for a remote deposition in lieu of traveling from North Carolina to Kansas, the district where she filed her lawsuit. In support of her request for a remote deposition, the plaintiff alleged that she suffered from “moderate persistent asthma” and cited guidance from the Centers for Disease Control and Prevention “[a]void crowds and poorly ventilated spaces,” and “[a]void non-essential travel.”
Not good enough, according to the Dubuc court. The court said that the plaintiff’s assertions fell “far short of demonstrating good cause to require that her deposition be conducted by videoconference.” The court said it was sympathetic to the defendant’s desire to conduct the deposition in person, in view of the facts that potentially $2 million in damages were at stake and the plaintiff had requested a jury trial.
“It shouldn’t come as any great surprise to plaintiff that defendant and its counsel want an opportunity to be ‘up close and personal’ when they assess what kind of witness she might make if this case ever gets to a jury,” the court remarked. It ordered the deposition to be conducted in person but in accordance with CDC guidelines for indoor gatherings.
The federal rule applicable to obtaining judicial permission for presenting remote video testimony instead of in-person testimony is even less hospitable to remote testimony. Federal Rule of Civil Procedure 43(a) authorizes trial courts to “permit testimony in open court by contemporaneous transmission from a different location” upon a finding of “good cause in compelling circumstances.”
A very recent case, BluestarExpo Inc. v. Enis, No. 21-20875-Civ-Scola (S.D. Fla., Oct. 17, 2022), explained that a compelling circumstance is an unexpected circumstance — an accident or illness that prevents the witness from traveling to the courthouse. In Bluestar Expo, the compelling circumstance proffered by the plaintiff was that two of its witnesses simply refused to travel from their homes (upstate New York, and Turkey) to the Southern District of Florida. Mere inconvenience doesn’t satisfy Rule 43(a), the court held. “The difficulties in procuring in-person testimony here were all reasonably foreseeable,” it said.
But States Encourage Greater Use of Remote Depositions
In contrast to federal courts, several state courts are in fact relaxing the required showings of good cause to conduct a deposition remotely over the opposing party’s objection.
In New York, Rule 37 of the Uniform Rules for the Supreme and County Courts (Rules of Practice for the Commercial Division) provides for remote depositions by consent or by a motion demonstrating good cause to conduct the deposition remotely.
“Good cause” requires the court to consider the following non-exhaustive list of factors:
- the distance between the parties and the witness, including time and costs of travel by counsel
- the safety of the parties and the witness, including whether counsel, parties, and the witness may safely convene in one location for the deposition
- whether the witness is a party to the litigation
- the likely importance or significance of the testimony of the witness to the claims and defenses at issue
New York’s good cause standard took effect Dec. 15, 2021, for all cases in its Commercial Division.
More recently, on Oct. 27, 2022, Washington State relaxed its procedural rules governing remote depositions. The new Washington court rules embody a presumption in favor of remote depositions. In Washington, the burden to show good cause falls to the party opposing a remote deposition. Good cause to conduct a deposition in person is established when there is a substantial, case-specific reason why a particular deposition should not be conducted remotely.
A litigation attorney’s general belief, based on experience, that witnesses are more effectively cross-examined (or defended) when counsel is physically present will probably not meet the new good cause standard. The hurdle for lawyers opposing remote depositions appears to be a high one, although it should be noted that “good cause” is not defined in the new rule.
Notwithstanding the rapid adoption of remote technologies by the legal profession during the past few years, it’s unwise to assume that, when push comes to shove, trial courts will routinely order remote testimony over the objection of the opposing side. The best course of action is, as before, to negotiate pretrial discovery matters — including depositions — with the opposing party in a manner that promotes “the just, speedy, and inexpensive determination of every action and proceeding,” as required by Rule 1 of the Federal Rules of Civil Procedure.
Failing agreement on a discovery plan that includes remote depositions, counsel seeking to conduct a remote deposition must be prepared to demonstrate good cause, however that term is defined in their jurisdiction. Don’t overlook local court rules in this regard. Procedures for obtaining and conducting remote depositions can be found in state and federal court rules, local rules, a judge’s individual court rules, standing orders, and case-specific orders and stipulations.