Reviewing the Rules of the Road: Where to Conduct a Deposition

Posted: August 29, 2018

Interpreting Location Rules When Conducting a Deposition

Conducting a deposition is a crucial part of the litigation process. Formal investigations take place to gather information about a case, better positioning both parties to define their strategies and save time once a trial has begun. While the rules for administering a deposition clearly define when and how a deposition should be conducted, they remain less certain about the deposition’s location.

Deposition and Discovery Rules

According to Federal Rule of Procedure 30(b)(1), a general notice for a deposition must include the time and place of the deposition and, if known, the name and address of the person being deposed. While the rules don’t clearly state where a deposition must take place, they do declare that the party responsible for initiating discovery may decide upon a location. This is, generally, not a problem if the opposing counsel is in agreement with the terms and conditions of the deposition location.

However, judiciary officials have more recently seen a rise in disputes related to deposition locations, a dilemma that encourages litigators to more thoroughly consider the rules for deciding upon a location.

When making this decision, the examining party should take into account three significant factors considered by court officials when disagreements arise. These factors are cost, convenience, and efficiency. Courts will also consider their ability to intervene in a case if a dispute were to arise, and, for this reason, may change the location (or way in which the deposition is conducted) if parties are located out of state or country.

In these circumstances, courts can call upon Rule 26(c), allowing them to change deposition locations to protect members or parties from unjust costs, inconveniences, or inefficient practices. A good case in point is Shockey v. Huhtamaki, a dispute revolving around an unfavorable deposition location.witnesses and litigators participate in a remote deposition using video conferencing equipment

When Courts Intervene

In the case of Shockey v. Huhtamaki, courts ultimately sided in favor of the plaintiffs’ requests to conduct the deposition with video conferencing technology. The seven opt-in plaintiffs were located in Michigan, New York, Indiana, Arizona, California, and Maine while the case in which they were involved, a Fair Labor Standards Act case, was litigated in Kansas. In response to the inconvenient circumstances, the plaintiffs offered three alternative options under a protective order. They requested they conduct the deposition where they lived, have defendants pay for the cost of their travel, or conduct the deposition via video conference call.
While the opposing party argued the plaintiffs had decided on Kansas as the place for litigation, requiring them to be deposed in the same location, the court objected on several accounts. They argued FLSA claims generally don’t require complex litigation services and are remedial in nature. Plaintiffs only alleged minor damages, and the cost of transportation proved to be a burden on each out-of-state plaintiff. Therefore, video conference calls were used in place of in-person deposition services, alleviating plaintiffs from costly and unnecessary travel costs.

Operating in an Unknown Realm

Judiciary discretion varies from case to case, even within a case, and litigators and opposing parties are wise to aim for cooperation, not solely relying on favorable rulings by court officials. Model Rule 30 and Rule 26, as discussed above, fail to define the parameters for where a deposition must take place and encourage judiciary officials to use their own interpretive powers with each case they address. For this reason, it may be safer for litigators to encourage cooperation amongst plaintiffs and defendants, coming to favorable agreements on their own terms.