Increasingly, the phrase “good cause” is being used by courts to decide whether a deposition or other judicial proceeding should be conducted remotely or in person. Depending on the jurisdiction and the precise nature of the proceeding, litigators are being asked either to show “good cause” for holding a presumptively in-person proceeding remotely or, on the other hand, for holding a presumptively remote proceeding in person instead.
Because the term “good cause” is becoming so important in contested cases, courts are insisting that lawyers offer case-specific evidence — as opposed to mere professional preference —demonstrating why a proceeding should be conducted either in person or remotely.
In Washington, for example, discovery depositions must be conducted remotely unless the trial court finds good cause to conduct the deposition in person. In Minnesota, nearly all judicial proceedings are presumptively remote unless the trial court finds exceptional circumstances to hear them in person. And in Florida, depositions may now be conducted remotely, even over objection, unless the trial court finds “good cause” to conduct the deposition in person.
The latest judicial application of the “good cause” standard to remote proceedings is the Indiana Supreme Court’s Dec. 16 ruling in In the Matter of the Civil Commitment of B.N., No. 22S-MH-408 (Ind., Dec. 16, 2022).
In B.N., the state supreme court discussed how trial courts should determine the existence of “good cause” as that term is used in Interim Administrative Rule 14 for Remote Proceedings. Interim Administrative Rule 14 creates a presumption that testimonial proceedings will be held in person. Importantly, the rule also provides that trial courts “may conduct the proceedings remotely for all or some of the case participants for good cause shown or by agreement of the parties.”
The B.N. case involved a civil commitment hearing – held in October 2021 — of an individual who allegedly suffered from paranoid delusions. Her attorney filed a motion objecting to conducting the hearing remotely, but the trial court denied the motion with a remark: “we’re proceeding remotely due to the COVID-19 pandemic.”
This was an error because Interim Administrative Rule 14 requires particularized and case-specific evidence that good cause exists to hold the hearing remotely, the high court ruled. The trial court’s general reference to the COVID-19 pandemic was insufficient support for a finding of “good cause” to proceed remotely, the high court explained, adding:
We emphasize that trial courts retain significant discretion to conduct remote proceedings over objection when there is good cause to do so. But they must offer something more than a one-size-fits-all, boilerplate pronouncement; good cause requires something specific to the moment, the case, the court, the parties, the subject matter, or other relevant considerations.
The requisite finding of “good cause” required “particularized and specific factual support” that was lacking here, the court ruled.
Along the way, the court cited another recently decided case, National Collegiate Athletic Association v. Finnerty, No. 21S-CT-409 (Ind., July 19, 2022), that also involved the application of a “good cause” standard for deciding motions for protective orders seeking to protect high-level corporate executives from depositions. This is the familiar “apex doctrine” that exists, in some form, in the federal system and nearly every state as well.
According to National Collegiate Athletic Association v. Finnerty, good cause exists to protect a high-level corporate executive from a deposition if the party seeking to prevent the deposition can demonstrate that:
- the executive lacks personal knowledge of relevant information greater in quality to that available elsewhere
- the information sought is obtainable through another, less burdensome method
- the deposition would be unreasonably cumulative or duplicative or
- the hardship accompanying the deposition outweighs its likely benefit.
However, the court said, these showings must be supported by particularized, case-specific evidence. “General and conclusory statements will fall short of establishing good cause,” the court ruled.
The Georgia Supreme Court also rejected the “apex doctrine” last year, ruling in General Motors LLC v. Buchanan, No. S21G1147 (Ga., June 1, 2022), that corporate executives can be deposed unless the corporation can identify specific and particularized reasons why the deposition would create an undue burden on the deponent or would not yield discoverable information.
The takeaway here is that litigators seeking an in-person deposition may find it difficult to overcome a prevailing presumption favoring remote depositions if their only reason is a professional preference for in-person depositions.
Going forward into 2023, it will be important for litigators to plan discovery strategies early and be prepared to defend their choice of in-person or remote depositions on a case-by-case and deposition-by-deposition basis.