If we can do weddings, funerals, healthcare, work, and trials via videoconference, surely
we can do the same with depositions.

And with that closing remark, a federal magistrate judge summarily dispatched one litigant’s demand that her opponent be ordered to travel across the Atlantic Ocean to sit for an in-person deposition.

The case, McCabe v. Albright, No. 21-cv-368 (D.D.C., Feb. 14, 2024), involves claims of copyright infringement that occurred when the defendant allegedly made unauthorized copies and read online portions of the plaintiff’s book. The lawsuit was filed in Washington, D.C. Subsequently, while the parties were negotiating dates for the plaintiff’s deposition, she moved to Russia and announced that she would not be returning to the United States.

The defendant insisted that the plaintiff be ordered to sit for an in-person deposition in Washington, D.C.. The defendant pointed out that the plaintiff had filed her lawsuit in Washington, D.C., a factor often cited in support of arguments that parties cannot reasonably claim to be inconvenienced if ordered to travel to the place where they filed their lawsuit.

The lesson for trial lawyers appears to be that, if you need to convince a court that you have a right to an in-person deposition, you won’t be able to rely on your impression that in-person is better than remote, or on cases decided during the early days of Internet communications.

The defendant also asserted that an in-person deposition was necessary in order to meaningfully assess the plaintiff’s credibility while she testified. This argument is often raised when a witness resists an in-person deposition; it reflects the sincerely held views of many litigators (though that number appears to be shrinking) that in-person proceedings yield the best evidence of credibility in contested matters.

The remarkable thing about the McCabe v. Albright ruling was not the outcome (many courts have turned back demands for in-person depositions in recent years), but the fact that the magistrate attached almost no weight to the defendant’s alleged need to “assess the credibility” of the plaintiff via an in-person deposition. He simply refused to entertain the possibility that a remote deposition is in any sense a less valuable proceeding than an in-person deposition.

Older cases, he noted, considered technology that is obsolete today. Cases holding that parties can be ordered to travel – sometimes great distances – for in-person depositions were all decided at a time when videoconferencing was “rare and clunky,” the magistrate remarked. “Other similar cases also do not reckon with the modern adequacy of videoconferencing software,” he added.

The magistrate concluded that modern videoconference technology adequately permits the defendant to observe the plaintiff during the deposition and to ask follow-up questions as is necessary to obtain the relevant information.

With these remarks, the magistrate appeared to sweep aside nearly all of the precedent – as being archaic and irrelevant – that litigators rely on when insisting over objection that the opposing party sit for an in-person deposition. The lesson for trial lawyers appears to be that, if you need to convince a court that you have a right to an in-person deposition, you won’t be able to rely on your impression that in-person is better than remote, or on cases decided during the early days of Internet communications.

Federal courts require parties to demonstrate “good cause” to support their preference for either an in-person or a remote deposition. This is almost always a case-specific reason, or set of reasons, and not a litigator’s general preference that could be applied to any case. Litigators can also expect that the “good cause” test will become more difficult to satisfy with the passage of time. As more aspects of our daily lives move online, and physical courtrooms evolve into virtual courtrooms across the country, the argument that “in-person is better” will likely become untenable in most cases.