Way back in April 2020, during the early days of the COVID-19 pandemic, a federal magistrate judge in Colorado had already seen enough to offer the following plea that lawyers reassess their habit of traveling long distances to conduct depositions:

There is every reason to hope, however, that some of the lessons learned during the pandemic will invoke changes of practice which, in addition to being healthy habits, also make economic and practical sense in the post-pandemic and even post-COVID-19-vaccine world. One of those current practices that may need re-evaluation is the practice of flying attorneys, clients, and deponents around the country or the world just to take a deposition.

The magistrate, turning back a party’s insistence on an in-person deposition in Brooks v. Pikes Peak Hospice, 497 F.Supp.3d 985 (D. Colo. 2020), noted that the parties had each hired competent, experienced legal counsel who could be expected to “deal competently with the technology eventually.”

As for the argument that remote depositions are inferior to in-person depositions, the magistrate remarked: “Such outmoded prejudices, based not on reality but rather on anecdotal and perhaps dated experience with technology, simply cannot be tolerated in the current climate, regardless of what the post-pandemic future may look like eventually.”

Time will tell whether the magistrate’s forecast ultimately comes to pass. But one thing is certain: If the pre-pandemic norm of cross-country travel for depositions ever returns, it won’t have found support from the federal judiciary along the way.

Technology and Competence to the Rescue

Most judges today are indeed somewhat more sympathetic with demands that a particular deposition be conducted in person. But not much. Litigators have become very adept at modern remote deposition technology. And problems such as surreptitious witness coaching – whether real or perceived – are being addressed through best practices guidance, ethical opinions, and greater attention to designing case-specific protections through remote deposition protocols. The supposed drawbacks to conducting depositions remotely don’t hold up to scrutiny today.

The very recent ruling in Kamradt v. Esurance Ins. Co., No. 22-cv-01445 (W.D. Wash., Dec. 1, 2023), is a good illustration of how federal courts typically resolve disputes over the format of pretrial discovery depositions. In Kamradt, the insurance company defendant wanted to take the plaintiff’s deposition in person in Seattle, which meant that the plaintiff would have to travel roughly 30 miles from her home in Everett.

Federal Rule of Civil Procedure 26(c) authorizes courts to enter an order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense. In the context of pretrial discovery, a party seeking a protective order must demonstrate that harm or prejudice that will result from the discovery.

The plaintiff in the Kamradt case sought a protective order, alleging that she would suffer an undue hardship because of health concerns related to COVID-19. Instead of raising a general concern about contracting COVID-19, the plaintiff asserted a particular danger: her job required her to work with immunocompromised children, thus raising the danger that an in-person deposition would create a risk to children as well as the plaintiff.

“As for the argument that remote depositions are inferior to in-person depositions, the magistrate remarked: “Such outmoded prejudices, based not on reality but rather on anecdotal and perhaps dated experience with technology, simply cannot be tolerated in the current climate, regardless of what the post-pandemic future may look like eventually.”

The court also noted that the plaintiff would have to take unpaid leave in order to appear at an in-person deposition. And she would have to take even more unpaid leave if she contracted COVID-19 as a result of the in-person deposition, it noted. Together, these considerations added up to an undue hardship.

Against the plaintiff’s particularized reasons for insisting on a remote deposition, the insurance company countered with a mere preference for an in-person deposition of the plaintiff. The insurer, according to the court, asserted that remote depositions are “not recommended” for obtaining controversial testimony, such as from an opposing party.

The court was unimpressed. An expressed preference for in-person depositions is not enough to establish prejudice.

“Even before the advent of robust videoconferencing tools, and their widespread adoption in litigation throughout the COVID pandemic,” the court wrote, “the federal rules contemplated a party’s preference against remote depositions giving way in the face of a good-cause showing.”

There is no support in the federal rules for the view that one party can unilaterally dictate that a deposition will be conducted in person, it said.

A similar view can be found in Vargas v. Evergreen Professional Recoveries Inc., No. 21-cv-00926 (W.D. Wash., March 23, 2022), where the court wrote that judicial acceptance of generalized justifications for in-person depositions would, if accepted, “eviscerate the rule allowing for remote depositions.”

Finally, the Kamradt case demonstrates a “hardship” for one party isn’t necessarily a hardship for the other. While the court accepted the plaintiff’s contention that traveling 30 miles north to attend an in-person deposition would be a hardship (along, of course, with the attendant health risks), it rejected the insurance company’s argument that sending its attorneys 30 miles south to depose the plaintiff would constitute a hardship. The insurer, it noted, is owned by an insurance conglomerate with $50 billion in revenue in 2022. It’s an example of how success in business can become a liability in litigation.

The lesson from the Kamradt and Vargas rulings is that asserting a general preference for an in-person deposition will rarely carry the day against a party’s particularized, case-specific reasons for conducting the deposition remotely. And if a party’s justifications for an in-person deposition are based on a desire to detect witness body language or discourage witness coaching, then those grounds too are no longer as persuasive as they used to be.