Did you notice that in-person depositions and remote depositions traded places in 2020? Legally speaking, that is.
When 2020 began, in-person depositions were the default means of obtaining pretrial testimony. Remote depositions were possible, of course, but only by stipulation or court order.
As 2020 ends, the situation is reversed. Remote depositions — widely encouraged as a way to move cases forward safely during the COVID-19 pandemic — are the norm today, while in-person depositions are nearly impossible to schedule without the agreement of all parties.
Today, over 85 percent of the depositions provided by Esquire Deposition Solutions are true remote depositions, meaning that the court reporter and the deponent are not together at the same location. This strong statistical preference for remote depositions began in April 2020, and shows no sign of abating.
What happened? The COVID-19 pandemic, obviously. Looking a little deeper, the reasons why in-person depositions are difficult to set boil down to these four:
COVID-19 Will Be Here for a While
The argument that in-person depositions should wait until the COVID-19 pandemic passes, which are rarely met with success even during the early days of the pandemic, is weaker today than ever. Back in April, when courts began issuing emergency orders encouraging remote depositions and virtual proceedings, the number of COVID-19 cases was approximately 30,000 per day in the United States.
On Nov. 11, the daily average for new COVID-19 cases exceeded 120,000 — a four-fold increase — with little sign of abating, according to data published by the Centers for Disease Control and Prevention.
Waiting for the pandemic’s end increasingly looks like a long, and indefensible, wait.
The rising incidence of COVID-19 cases also lends increased weight to arguments from attorneys and deposition witnesses that they should not be forced to risk their health when safe, remote means of conducting the deposition are available.
In Nebraska: Lawyers Must COVID-Screen In-Person Witnesses
Earlier this month, the Nebraska Supreme Court gave attorneys in that jurisdiction another barrier to climb when conducting in-person depositions: a requirement that they screen witnesses who might transmit COVID-19 (PDF) prior to all in-person court proceedings — including depositions.
The court’s order defines three categories of persons who have an elevated risk of transmitting COVID-19:
According to the court’s Nov. 6 order:
1) any attorney or party shall promptly notify counsel and the court if they reasonably suspect that a participant in any scheduled hearing, trial, conference, deposition, or other proceeding may come within any of the [categories listed above];
3) to the extent possible, counsel shall affirmatively inquire of their clients and witnesses whether they come within any of the [categories listed above];
4) no person who falls within any of those categories shall attend any hearing, trial, conference, deposition, or other proceeding without prior notification to, and authorization from, the court.
Two points are immediately apparent from the court’s order. First, attorneys in Nebraska now have the responsibility to conduct COVID-19 screening inquiries with their clients and witnesses prior to any court proceeding. (Add “thermometer” to the list of items that belong in every litigator’s briefcase.) Second, the likelihood that someone will fail to pass this screening on the day of an in-person deposition introduces a level of scheduling uncertainty that may be unacceptable to some litigators.
Courts See Remote Depositions as Part of the Solution
When COVID-19 struck and it became clear that waiting for the pandemic to pass would create an unacceptable backlog of judicial business, courts in all jurisdictions in the United States issued orders encouraging the use of technology to move cases forward, including the wider use of remote depositions. Today, every jurisdiction permits remote depositions either by stipulation or court order, according to this legal resource assembled by the Perkins Coie law firm.
Some courts were coercive: They declared that an unreasonable refusal to participate in a remote deposition could subject the attorney to sanctions. The Wyoming Supreme Court’s March 26 order (PDF) is an example of this approach.
An interesting corollary to state courts’ determination to carry on virtually during the COVID-19 pandemic is the notion that, if courts are to be virtual, then attorneys also have an ethical obligation to become competent in virtual technologies. The State Bar of Michigan recently suggested that depositions should be held remotely as a matter of professional ethics during an emergency. In its publication, Ethics in the COVID-19 Pandemic, the bar stated that the ethical obligations of diligence (Rule 1.3) and competence (Rule 1.1) require attorneys to “learn how to use the appropriate technology to diligently represent clients.”
Few Courts Are Willing to Compel In-Person Depositions
Discovery disputes involving remote depositions have yielded few winning arguments for attorneys insisting on in-person depositions. The reason is plain: The need for virtual proceedings is great, while the burden is slight and, in many cases, purely speculative.
In the federal system, Federal Rule of Civil Procedure 30(b)(4) permits remote depositions if the parties stipulate to them or by order of the court. When the parties are unable to agree to stipulate to a remote deposition, a court will weigh whether (1) there is a good reason to conduct the deposition remotely and (2) the party opposing the remote deposition will suffer an undue burden or hardship if the deposition is conducted remotely.
The COVID-19 pandemic has supplied the reason for conducting depositions remotely. As for claims that remote depositions impose an undue burden, nearly all courts have ruled that they do not. In a recent New York case, Chase-Morris v. Tubby, No. 65927/2019 (N.Y. Sup. Ct., Westchester Cty., Aug. 3, 2020), the court stated:
New York’s trial level courts … appear to conclude that virtual depositions do not cause undue hardship in light of the technology currently available and the serious health risks posed by the COVID-19 virus.
The case of Johnson v. Time Warner Cable N.Y. City LLC, 2020 NY Slip Op 31592(U) (N.Y. Sup. Ct., New York Cty., May 28, 2020), is another example of a court ordering a remote deposition over the objection of a party. Counsel opposing the remote deposition contended that neither he nor the witness felt “comfortable participating in a deposition conducted by videoconference technology.” Counsel also argued that his client would be prejudiced if he was not able to sit next to the witness during the opposition. The court ruled that counsel was free to travel to the remote location where the witness was located, but, given the exigencies presented by the ongoing pandemic, the deposition should be held remotely. Along the way, the court rejected the argument that in-person should be held after the COVID-19 threat abated, whenever that might be.
Some courts, however, have ordered in-person depositions during the COVID-19 pandemic. In Manley v. Bellendir, No. 18-CV-1220 (D. Kan. May 28, 2020), a federal trial court in Kansas found that a party objecting to an in-person deposition had failed to establish he was at heightened risk of contracting COVID-19 if forced to testify at an in-person deposition. The court noted that all persons present during the deposition would be wearing personal protective equipment and observing social distancing guidelines.
In another case, Bell v. Stoddard, No. 28136/2019E (N.Y. Sup. Ct., Bronx Cty., June 24, 2020), the court declined to compel a 79-year-old man to testify in a remote deposition. Balancing the witness’s risk of contracting COVID-19 during an in-person deposition against the risk that he would be exposed to COVID-19 from persons installing remote deposition technology at his location, the court decided to permit the witness to elect the deposition format — in-person or remote.
These two cases appear to be outliers, limited to the narrow facts presented in each. With the COVID-19 pandemic still with us, it’s fair to speculate whether those courts’ assessment of the dangers posed by COVID-19 will be persuasive to courts faced with similar issues in the future.
When 2020 arrived, attorneys who wanted to conduct remote depositions faced an uphill battle. Will opposing counsel stipulate to a remote deposition? Do all parties have the necessary technology to participate in a remote deposition? Is there a justification for departing from the comfort zone of in-person depositions? Do any lawyers involved in the case believe that remote depositions prejudice their client? Do any lawyers involved in the case believe they’re unable to competently represent their client in a remote deposition?
COVID-19 has largely obliterated those impediments to remote depositions. As 2020 comes to an end, remote depositions are overwhelmingly the norm. And it’s the proponents of in-person depositions who have the heavy burden of demonstrating that conducting an in-person is worth risking the health of everyone involved.