The COVID-19 pandemic taught the legal community that technology can be deployed to effectively serve clients and resolve disputes remotely, if necessary. Suddenly stripped of their ability to meet in-person, lawyers and courts rapidly adopted technology to meet their professional obligations.
But as the country emerges from COVID-19 and restrictions on travel and in-person meetings are gradually lifted, a new series of questions seems certain to arise: Are there circumstances in which lawyers must use technology in their practices? Specifically, is technology a requirement when its use will save clients time and money?
These questions are not fanciful. Take, for example, the case of remote depositions. When COVID-19 struck, courts across the country modified their discovery rules to encourage remote depositions as a means of moving cases along. A litigator’s preference to conduct a deposition in-person did not trump health and safety justifications for conducting the deposition remotely via videoconferencing technology. Courts throughout the country were nearly unanimously unsympathetic to a litigant’s objections to participating in remote depositions and refused to require in-person participation, expressly requiring parties to move forward remotely.
Given the pace of vaccinations and the (hopeful) inevitability of herd immunity, health and safety justifications for remote depositions seem certain to fade as 2021 progresses. Courts across the country will be revisiting pretrial discovery rules, written on an emergency basis during COVID-19, with an eye toward preserving and building on the lessons learned about the promises and pitfalls of remote practice. Inevitably, litigators will likely be able to claw back some of their discretion to decline a remote deposition — whether for strategic reasons or due to a lack of skill or comfort with the technology — and insist on in-person proceedings.
That said, state and federal may step in to provide a strong rationale for requiring remote depositions. For instance, federal rules governing pretrial discovery already limit the extent of pretrial discovery in a particular case based, in part, on cost considerations. Federal Rule of Civil Procedure 26 states that information is discoverable if it is relevant, not privileged, and “proportional to the needs of the case.” Among the factors to be considered when deciding proportionality are the importance of the discovery to the issues in the litigation, the amount of money at stake, and whether the burden or expense of the discovery outweighs the likely benefit.
To be sure, Rule 26 addresses the scope of discovery — not the manner of taking discovery. But notions of efficiency and cost savings clearly animate the rule.
Remote Deposition Proposal for New York Business Courts
New York is now considering the issue of cost savings in deposition practice., Judicial officials recently proposed a rule for the state’s business courts that would empower trial judges to order remote depositions for a host of reasons, only one of which is related to health and safety concerns.
A proposed rule (PDF) for the New York Supreme Court Commercial Division would give the trial court authority to order remote depositions over a party’s objection if “undue hardship” was shown. The proposal states:
b. The court may, upon the consent of the parties or upon a motion showing undue hardship, order oral depositions by remote electronic means, subject to the limitations of this Rule.
Considerations upon such a motion, and in support of a showing of undue hardship, shall include but not be limited to:
1. The distance between the parties and the witness, including time and costs of travel by counsel and litigants and the witness to the proposed location for the deposition; and
2. The safety of the parties and the witness, including whether counsel and litigants and the witness may safely convene in one location for the deposition; and
3. Whether the witness is a party to the litigation; and
4. The likely importance or significance of the testimony of the witness to the claims and defenses at issue in the litigation.
The rule explicitly invites trial courts to weigh such matters as efficiency, litigation expense, and the importance of securing the deponent’s testimony when deciding whether “undue hardship” for taking a deposition remotely exists. And it allows consideration of other non-specified factors that might be raised by the parties or the court itself.
The New York State Bar Association’s Commercial and Federal Litigation Section, in comments recently filed with the New York Office of Court Administration (PDF), “strongly supported” the remote deposition rule. The NYSBA urged the court to amend the proposed rule to make clear that the relative cost of an in-person deposition versus a remote deposition should be taken into account when deciding whether a remote deposition can be ordered by the trial court. Their comment reads:
The cost and time savings due to decreased travel by witnesses and counsel and efficiencies in presenting exhibits more than makes up for any increased cost due to video recording of the deposition, especially in complex, commercial litigation where depositions recorded on video media have often been used. Accordingly, the Section suggests that the proposed rule be modified to include an explicit consideration of the relative costs of a remote deposition compared to an in-person deposition as one of the factors in determining undue hardship.
The NYSBA also argued that making a recording of the remote deposition should be optional and that the videographer should not have the burden of monitoring the audio and video transmission for technical problems.
The New York City Bar, in its comments, questioned the need for the new rule at this time:
As best we can ascertain, the Commercial Division justices and counsel have adapted with little difficulty to the increased use of remote depositions. As a result, the status quo, even without the Proposal, is that remote depositions are being — and will continue to be — conducted largely without incident. Thus, we see no immediate need for a rule to further guide the court and parties in this developing area of practice.
The city bar urged the court to wait to allow additional experience with remote depositions before regulating this aspect of pretrial procedure. The city bar did suggest, however, that “good cause” is preferable to “undue hardship” as a description of the grounds for ordering a remote deposition over the objection of a party.
The New York rule change proposal also includes a sample remote deposition protocol that addresses frequent trouble spots in remote depositions, such as technology failures, security and confidentiality issues, private communications, and digital exhibits.
Remote deposition protocols establish “rules of the road” for how depositions will be conducted during litigation. Remote deposition protocols often create a framework for resolving objections, they set expectations for the types of technology to be used during the deposition, and they set out each party’s rights in the event of connectivity technology failures (e.g., inability to hear the deponent, or counsel, or inability to view digital exhibits).
For counsel approaching remote depositions for the first time, making a careful study of remote deposition protocols in other cases is a good way to learn from the experience of other litigators.
As a reminder, in New York, the state’s “supreme courts” are, in fact, trial courts. The New York Supreme Court Commercial Division is a group of specialized trial courts with jurisdiction to decide high-value business disputes.