SDNY COURTHOUSE, July 12 – As the Coronavirus pandemic has proceeded but civil litigation has continued, the question of whether there is a right to in-person rather than virtual deposition has repeatedly arisen.
Inner City Press has reported on a proceeding in which the deposition taker sent the deponent documents by FedEx, not to be opened until the very moment of questioning.
Now, U.S. District Court for the Southern District of New York Magistrate Judge Stewart D. Aaron has issued a ruling denying a deposition taker's argument that they had a right to in-person deposition, complete (if possible) with Perry Mason moments. From the decision:
"Before the Court is a Letter Motion by Plaintiffs, Jodi Rouviere and Andre Rouviere (collectively, “Plaintiffs”), filed on July 7, 2020, to compel corporate representative(s) of Defendant Howmedica Osteonics Corporation (“Howmedica”), doing business as Stryker Orthopaedics, to appear in person for a deposition, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, to extend the discovery deadline until an in-person deposition of Howmedica’s corporate representative(s) can be conducted. (Pls.’ 7/7/20 Ltr. Mot., ECF No. 135.)1 For the following reasons, Plaintiffs’ Letter Motion is DENIED. BACKGROUND This is a medical device product liability case that was commenced on May 31, 2018 arising from injuries allegedly sustained by Plaintiff Jodi Rouviere after receiving a purportedly defective hip implant containing components manufactured by Howmedica and another defendant, Defendant DePuy Orthopaedics, Inc. ...
Chief Judge McMahon currently is conducting a bench trial via Zoom in a patent case in our Court. See D. Siegal, Ferring And Serenity’s SDNY Patent Trial Kicks Off Over Zoom, Law360 (Jul. 6, 2020). So too, conducting depositions remotely is becoming the “new normal.” See In re Broiler Chicken Antitrust Litig., No. 16-CV-08637, 2020 WL 3469166, at *5 (N.D. Ill. June 25, 2020) (“Courts are beginning to recognize that a ‘new normal’ has taken hold throughout the country in the wake of the COVID-19 pandemic that may necessitate the taking of remote depositions unless litigation is going to come to an indefinite halt until there is a cure or a vaccine for COVID- 19.” (citing cases))....
The only other potential prejudice to Plaintiffs by proceeding remotely is that the examiner will not be physically present to interact with, and observe the demeanor of, the deponent. However, a remote deposition by its nature is not conducted face-to-face. If the lack of being physically present with the witness were enough prejudice to defeat the holding of a remote deposition, then Rule 30(b)(4) would be rendered meaningless. See Robert Smalls Inc. v. Hamilton, No. 09-CV-07171 (DAB) (JLC), 2010 WL 2541177, at *4 (S.D.N.Y. June 10, 2010) (“accepting Plaintiffs’ arguments absent a particularized showing of prejudice ‘would be tantamount to repealing [Fed. R. Civ. P. 30(b)(4)]’” (citation omitted)); see also Usov v. Lazar, No. 13-CV-00818, 2015 WL 5052497, at *2 (S.D.N.Y. Aug. 25, 2015) (“remote depositions are ‘a presumptively valid means of discovery’” (citations omitted))....
For the foregoing reasons, Plaintiffs’ Letter Motion (ECF No. 135) is DENIED. The deposition of Howmedica’s corporate representative(s) shall be taken by videoconference no later than August 21, 2020, and shall not exceed eight hours in duration.
The case is Rouviere et al v. Depuy Orthopaedics, Inc. et al, 18-cv-4814 (Liman / Aaron).
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