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SDNY Finds In-Person Depositions Impose 'Undue Burden' on Nonparties During COVID-19 Pandemic

July 6, 2020

SDNY Finds In-Person Depositions Impose 'Undue Burden' on Nonparties During COVID-19 Pandemic

July 6, 2020

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As cases continue to rise across the country, remote depositions seem likely here to stay for the foreseeable future.

Health concerns over the lingering COVID-19 pandemic have given life to Rule 30(b)(4) of the Federal Rules of Civil Procedure, which provides: “The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” Trial courts in the Second Circuit are encouraging parties to stipulate to remote depositions to minimize the risks of COVID-19 exposure, with some courts ordering remote depositions as the default in pending cases. See, e.g., Djurdjevich v. Flat Rate Movers, Ltd., No. 17-CV-261 (AJN) (BCM), 2020 WL 2319119, at *2 (S.D.N.Y. May 8, 2020) (magistrate judge ordered, “that for the duration of the COVID-19 national emergency all depositions in this action (unless specifically exempted by the Court) shall be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means”).

A June 24, 2020 decision from Judge Caproni of the Southern District of New York demonstrates that, when the parties are unable to stipulate, COVID-19 may provide a basis for the court to order remote depositions. Joffe v. King & Spalding L.L.P., No. 17-CV-3392 (VEC), 2020 WL 3453452 (S.D.N.Y. June 24, 2020). In the Joffe case, the court ordered remote depositions of certain third party witnesses, denying the plaintiff’s request that non-party witnesses sit for live depositions.

Judge Caproni’s reasoning was motivated by several factors. First, the court noted that the witnesses were not parties, and the “Courts in this circuit are particularly sensitive to burdens imposed on non-parties.” Joffe, 2020 WL 3453452, at *5 (internal citation omitted). Second, the court found that the third party testimony at issue was “not likely to be central to the trial.” Id. at *6. Third, the court was concerned with the health ramifications of requiring counsel and third parties to assume the health risks associated with “interstate travel” to attend live depositions in Utah and Pennsylvania. Id. at *7 (“While the Court acknowledges that cases in New York have declined significantly, both of the proposed depositions contemplate interstate travel, and the Court is not aware of any suggestion from New York authorities that residents should not continue to minimize in-person, indoor contact and unnecessary travel.”). Fourth, the court concluded there was “likely marginal utility” to conducting an in-person deposition where the deponent would be wearing a mask while keeping a minimum 6 feet of distance from the person taking the deposition. Id. at *6.

Weighing the foregoing factors, Judge Caproni ruled that the two proposed non-party depositions should be taken remotely, reasoning that “forcing witnesses to choose between their health and their attorney being on an equal footing with [plaintiff] is itself a burden.” Id.

The Joffe order was driven by Rule 45(d)’s undue burden standard, so a different analysis may apply to a party deponent or a witness with critically relevant testimony, particularly where the deposition does not require extensive travel by the attorneys. Nevertheless, components of Judge Caproni’s reasoning broadly apply to all depositions. It is significant that a district judge cemented the general proposition that “in-person depositions pose a significantly greater risk of COVID-19 transmission than a remote deposition.” Id. (pointing out in footnote 7 that, “Courts in this circuit have been cognizant of the risks of in-person testimony and have encouraged remote depositions as a matter of course.”). If a party cannot persuade a court that there is more than marginal utility to live testimony, it is expected that parties and non-parties alike would invoke the Joffe ruling to resist live depositions. As cases continue to rise across the country, remote depositions seem likely here to stay for the foreseeable future.

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