A prior post looked at two recent trial court rulings involving claims that witness coaching had occurred during a remote deposition, making the point that litigators can protect their clients against witness coaching by taking the time to craft a remote deposition protocol that ensures the integrity of remote depositions. As has proven to be the case for many challenges faced by the legal profession during the COVID-19 pandemic, creative lawyering and planning for novel circumstances supplied the solution to that problem.
The heightened opportunity for witness coaching is, however, just one of several legal trouble spots uncovered since remote depositions became a fixture of the “new normal” in pretrial discovery during the COVID-19 pandemic. The following (by no means exhaustive) list of cases illustrates other legal disputes that courts have been asked to resolve while supervising remote depositions during the past year.
As is the case with most discovery-related rulings, the precedential weight of each court’s ruling may be limited by the circumstances of the underlying litigation and by the fact that trial courts have wide discretion to resolve pretrial discovery disputes.
Can a witness wear a face mask during a remote deposition? No.
In Stowe v. Alford, No. 19-cv-01652 (E.D. Cal., May 24, 2021), the court ruled that the deponent in a remote deposition may not obscure his face with a mask. “Plaintiff must appear on video during the remote deposition wearing either no protective face covering or a covering, such as a clear face-shield, that allows clear facial visibility,” the court said. “It is plaintiff’s responsibility to ensure his face is visible. … Plaintiff has several options to ensure safety protocols while still appearing unmasked at his remote deposition: he could be in a separate room, he could ensure proper ventilation, he could wear a face shield. To avoid prejudice to the defendant, plaintiff must appear on video without a mask.”
The court also declined to require that all parties present with the deponent be on-camera, finding no legal basis for entering such an order.
Can defending counsel be excluded from being in the same room as the deponent? No.
In Klein v. Facebook Inc., No. 20-cv-08570 (N.D. Cal., Sept. 21, 2021), plaintiff’s attorney sought an order preventing defending counsel from being present together in the same room with the deponent during a partially remote deposition unless plaintiff’s counsel was also present. “[T]here is no justification here for excluding counsel defending the witness from being physically present in the same room as the witness,” the court said. “The Court expects all counsel to behave ethically and professionally. In particular, defending counsel must avoid improper coaching or other communication with the witness.”
Can a potential fact witness be excluded from being in the same room as the deponent? No.
In Stowe v. Alford, mentioned above, the court refused to exclude the deponent’s spouse from being present in the room where the remote deposition was to be held. Counsel offered several justifications for excluding the spouse: she was a fact witness in the case, she could give non-verbal cues to the deponent that shaped his testimony, and she had a financial stake in the outcome of the case.
“The court finds that, whether plaintiff’s spouse is at the deposition or not, there could be spousal conversations during breaks via telephone,” the court said. “The issue of non-verbal cues can be addressed with an instruction that non-verbal cues are not permitted; the court trusts plaintiff’s counsel will not allow impermissible cueing or signaling to the plaintiff during the deposition.”
The court concluded that counsel’s concerns did not create “good cause” for obtaining a protective order excluding the deponent’s spouse, as required by Federal Rule of Civil Procedure 26.
Where does a remote deposition take place? Where the attorney is located, or where the witness is located? For purposes of Federal Rule of Civil Procedure 45, where the witness is located during the deposition.
Rule 45(c) allows the issuance of a subpoena to “command a person to attend a … deposition … within 100 miles of where the person resides, is employed or regularly transacts business in person.” In U.S. v. $110,000 in U.S. Currency, No. 21-c-981 (N.D. Ill., June 10, 2021), a witness argued that a subpoena calling for a remote deposition, issued by government attorneys located in Nebraska, exceeded Rule 45’s 100-mile limit because the witness resided over 100 miles away in Illinois. The court rejected the witness’s contention that a remote deposition takes place where the questioner is located. According to the court, the purpose of Rule 45(c)’s 100-mile limit is to minimize the inconvenience of travel for the witness — not to place a geographic restriction on subpoenas for remote depositions.
“[P]roceeding virtually with Madden in Chicago and some Government attorneys in Nebraska prevents the harm Rule 45(c) is meant to guard against,” the court said. “Madden’s place of attendance for the subpoenaed deposition is the Chicago Office of the United States Attorney for the Northern District of Illinois. This is the same city in which Madden resides and less than 10 miles from his home. … [T]he fact that the Government attorneys leading the deposition will participate remotely from Nebraska does not change this analysis.” A similar result was reached in Int’l Seaway Trading Corp. v. Target Corp., No. 20-mc-20-mc-00086 (D. Minn., Feb. 22, 2021) (“Virtual attendance of this nature is consistent with the plain language of Rule 45(c)(1)(A) because . . . [the witness] can comply with the deposition from his home or anywhere else he chooses that is within 100 miles of his residence.”). But see Broumand v. Joseph, No. 20-cv-9137 (S.D. N.Y., Feb. 27, 2021) (Rule 45(c)’s 100-mile limit applies even though testimony will be given remotely).
Can the deponent refuse to attend a remote deposition based on a general concern about COVID-19 risks? No.
In Nasuti v. Walmart Inc., No. 20-cv-05023 (D.S.D., June 8, 2021), the deponent asserted a long list of objections to a remote deposition, among them the claim that the presence of other persons at the deposition site was a danger to his health. The court turned back the objection, noting the availability of vaccinations against COVID-19 and government guidelines for staying safe indoors.
“Even if Mr. Nasuti or the court reporter have not been vaccinated, Mr. Hedican has proposed a plan which would adequately provide for the safety of all participants in the deposition,” the court said. “In light of the precautions proposed by [counsel] and the updated CDC guidelines and wide availability of a vaccine, the Court finds Mr. Nasuti’s argument against conducting his deposition for COVID-19 related reasons is without merit.”
Can a party unilaterally notice a remote deposition? Yes.
In Nasuti v. Walmart, discussed above, the court rejected the argument that Federal Rule of Civil Procedure 30(b)(4) required party consent to remote depositions. “This interpretation of Rule 30(b)(4) is incorrect,” the court said. “While conferring between counsel and the litigant is the civilized route – and the court strongly encourages the parties to avail themselves to his method – there is nothing in the rules to compel such conduct.”
Is the claim that a deposition will be “document-intensive” a legal justification for refusing to conduct it remotely? No.
In U.S. v. K.O.O. Constr., Inc., 445 F.Supp.3d 1055 (S.D. Cal. 2020), the court said that the fact that the case involved “voluminous and highly detailed exhibits” provided no legal basis to prohibit remote 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,” the court said. “[T]he Court also finds the parties have not diligently sought to complete depositions because they are rejecting the use of remote videoconference depositions for reasons of convenience and not true prejudice.”
Which party bears the cost of shipping documents to the remote deposition site? The party noticing the deposition.
The court ruled in Chabot v. Walgreens Boots Alliance Inc., No. 18-cv-2118 (M.D. Pa., March 12, 2021), that remote depositions should adhere to the same rules as in-person depositions: the party noticing the deposition is responsible for the costs associated with shipping documents.
“When depositions are conducted in person, the costs of copying exhibits are borne by the noticing party, and that should stay consistent when the depositions are remote,” the court said. “In addition, the Court is aware of no instances where shipping costs have been judicially shifted from the noticing party in the event of a remote deposition.”
Are the costs of a “remote deposition platform” taxable against the losing party in federal litigation? No.
In Bucklew v. Charter Communications LLC, No. 19-cv-2029 (M.D. Fla., Aug. 16, 2021), the magistrate judge was asked to sort through a list of costs that Charter Communications wanted taxed against an employee in a disability discrimination lawsuit. Deposition transcripts, yes. Court reporter appearance fees, yes. Remote deposition fees? Costs of document-sharing platform? Here the court said no.
The federal statute governing taxation of costs, 28 U.S.C. §1920, allows “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” The court ruled here that this language was not broad enough to reach remote deposition fees. Case law allows taxation of court reporter appearance fees against the losing party even though those costs are not mentioned in Section 1920. However, no such case law brought to the court’s attention allowed taxation of costs associated with conducting the deposition remotely.
“Mr. Bucklew’s deposition was taken via videoconference because of the COVID-19 pandemic,” the court wrote. “Section 1920 does not specifically allow for recovery of remote video platform fees nor has Charter provided authority in this District when the court allowed such fees. Thus, Charter should not be awarded the costs of the remote deposition platform used for Mr. Bucklew’s deposition.”
Where Are We Now?
Clearly, some of the legal issues courts were asked to decide during the past year will fade into oblivion when the pandemic passes. We should all hope for the day when depositions — whether remote or in-person — will not raise concerns about the health of participants or disputes about mask-wearing.
Other rulings, such as those in $110,000 in U.S. Currency, Broumand, and Int’l Seaway Trading Corp., which applied rules written for in-person proceedings to virtual proceedings, seem sensible and likely to endure as more judicial business moves online. In fact, just as the emergence of electronic commerce led lawmakers to excise requirements that legal documents be “signed” and “in writing” from statutes and regulations, the shift from in-person to remote legal proceedings may prompt a similar review of geographic terms currently found in federal and state laws and procedural rules.Finally, some rulings discussed above may not survive the scrutiny of future judicial consideration. Reasonable observers might argue that the court’s ruling in Bucklew on taxation of remote deposition costs overlooks the benefits of remote depositions — both to the parties and to the judiciary’s wider interest in encouraging the prompt and efficient resolution of legal disputes. It seems odd that attorneys’ fees for travel are, in many types of litigation, taxable against the losing party but the far-lesser cost of a remote deposition in lieu of attorney travel is not. This may be another area where policymakers can improve the justice system by modifying existing rules to ensure that society receives all the advantages created by new legal technologies.