Depositions During the COVID-19 Crisis

With 95% of the country presently subject to stay-at home orders due to COVID-19, many litigators are considering whether and how to take depositions in the coming weeks. Federal court responses have varied, from blanket extensions of civil deadlines to encouraging remote depositions. Whether it is advisable or even permissible to depose a witness under current circumstances will depend on several factors, including the jurisdiction, the deponent, and the anticipated substance of the deposition.

Many Courts are Extending Discovery Deadlines:

Numerous courts have issued administrative orders extending all civil deadlines due to COVID-19. The District of New Jersey, for example, in Standing Order 2020-04, extended all filing and discovery deadlines which fall between March 25, 2020 and April 30, 2020 by forty-five days. See also, Standing Order 3:20-mc-105 (D.S.C. Mar. 16, 2020) (extending all civil deadlines); Standing Order 20-0012 (N.D. Ill. Mar. 30, 2020) (same).

Other courts have extended discovery deadlines on a case-by-case basis based on general COVID-19 concerns. The District of Minnesota, for example, recently granted a contested motion to extend the discovery deadline, stating “it is essential that all Minnesotans work together to slow the spread of this terrible pandemic. In addition, counsel and litigants need to be patient and understanding with one another, and they should work cooperatively to adjust schedules as needed.” See Elsherif v. Mayo Clinic, 2020 WL 1441959 at *1 (D. Minn. Mar. 24, 2020). The court further noted the “extraordinary” impact of working remotely, and found a clear showing of good cause existed to extend the discovery deadline where counsel argued he must avoid traveling to protect himself and other high-risk family members from potential exposure to the virus. Id.

Other Courts are Authorizing Remote Depositions:

Some courts are opting to authorize depositions via remote means. See, e.g., Sinceno v. The Riverside Church in the City of New York, 2020 WL 1302053 (S.D.N.Y. Mar. 18, 2020) (authorizing the taking of all depositions by remote means in light of COVID-19 concerns); Thomas v. Wallace, Rush, Schmidt, Inc., No. 3:16-cv-00572, Dkt. 160 (M.D. La. March 18, 2020), (“[g]iven Plaintiff’s economic situation and the coronavirus outbreak . . . [c]onducting Plaintiff’s deposition by telephone or videoconference is appropriate”); Velicer v. Falconhead Capital LLC, 2020 WL 1847773 at *2 (W.D. Wash. Apr. 13, 2020) (refusing to extend discovery deadline, encouraging the parties to take depositions remotely).

Courts may authorize remote depositions under Federal Rule of Civil Procedure 30(b)(4), and consider whether the burden of proposed discovery outweighs the likely benefit under Federal Rule of Procedure 26(b)(1). Courts may quash a subpoena under Federal Rule of Civil Procedure 45 where compliance would subject a person to “undue burden.” While some courts require the party requesting a remote deposition to show good cause or “extreme hardship”, others liberally permit remote depositions and require the party opposing the remote deposition to make a particularized showing as to why it would be prejudicial. Compare Shibata v. Swingle, 2018 WL 4522050 at *2 (N.D.N.Y. Feb 26, 2018) (noting “the party requesting a deposition via remote means bears the burden of demonstrating good cause”) with Jahr v. IU Intern. Corp., 109 F.R.D. 429, 431 (M.D.N.C. 1986) (“leave to take telephonic depositions should be liberally granted in appropriate cases . . . . Thus, upon giving a legitimate reason for taking a deposition telephonically . . . the burden is on the opposing party to establish why the deposition should not be conducted telephonically.”).

Even where a particular court is generally encouraging parties to proceed with depositions, COVID-19 concerns or the inherent limitations of remote depositions may render particular depositions unduly prejudicial.

Medical Provider Depositions:

Courts may be reluctant to permit depositions of medical providers under present circumstances. The Northern District of Illinois stated that it has “developed concerns about whether the depositions of medical providers should continue to go forward without scrutiny from the Court with respect to the question of the burden that deposition participation places or may place on medical providers during the COVID-19 public health emergency.” Lipsey v Walmart, Inc., 2020 WL 1322850 (N.D. Ill. Mar. 20, 2020). The court further stated, “the medical community is very, very busy right now, and likely will be busy for weeks or months to come. . . . . . .It is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck. All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.”. Id., citing Devine v. XPO Logistics Freight, 2020 WL 1322850 at *2-3 (N.D. Ill Mar. 20, 2020).

Accordingly, in the Northern District of Illinois parties must obtain a court order before subpoenaing a medical provider for deposition. Lipsey, 2020 WL 1322850 at *4. To obtain a court order, the parties must inform the court of the proposed deponent’s current and anticipated involvement in the COVID-19 public health emergency, as well as the nature and extent of the proposed deponent’s involvement in the treatment of the plaintiff and his or her relative importance to the case.   Id. The court will not permit the subpoena if the burden of deposing the proposed medical provider outweighs the likely benefit under the circumstances. Id. at *3.

Potential Concerns Regarding Remote Depositions:

Even where a telephonic or video deposition is theoretically possible, there are several factors the parties should consider in evaluating the practical impact of proceeding with remote depositions:

  • As an initial matter, the noticing party should consider whether the deposition could later be procedurally challenged. The present COVID-19 restrictions may preclude an officer from physically attending a deposition, in violation of Federal Rule of Civil Procedure 28, which requires depositions to be conducted “before an officer authorized to administer oaths”. Certain courts have issued COVID-19 related orders stating that a deposition will be deemed to have been conducted “before” an officer so long as that officer attends the deposition via the same remote means used to connect all other remote participants. Sinceno, 2020 WL 1302053 at *1. Absent such an order, however, the parties will need to make sure the remote deposition complies with Rule 28. See, e.g., Kaufman v. Equifax Info. Svcs., 2015 WL 6142888 (“most courts read Rules 28 and 30 together to require the officer administering the oath in a telephonic deposition to be physically present with the deponent”).Holding the deposition without an officer physically present may implicate other practical concerns, such as improper witness coaching. See Alfaro-Huitron v. WKI Outsourcing Solutions, LLC, 2016 WL 10516098 at *1 (D.N.M. Mar. 15, 2016) (holding “placing a court reporter in the room with the Plaintiff-deponent and instructing the court reporter to report all individuals present and any communication with the deponent” may assuage concerns regarding improper communication with witness). For this reason, it may be prejudicial to depose a key witness remotely.
  • Both parties will also want to consider the grounds available to challenge whether the noticed deposition should only proceed in-person.
    • For example, where the testimony at issue is critical to the case, courts have found that the inherent limitations in remote depositions constitute undue prejudice against the party opposing the remote deposition. See In re Fosamax Prods. Liab Litig., 2009 WL 539858 at *2 (S.D.N.Y. Mar. 4, 2009) (requiring in-person deposition where “testimony may be critical”); Birkland v. Courtyards Guest House, 2011 WL 4738649 at *2 (E.D. La. Oct., 7, 2011) (“The ability to observe a party as he or she answers deposition questions is an important aspect of discovery which the Court will not modify except in cases of extreme hardship.”); Kean v. Board of Trustees of the Three Rivers Reg. Library Sys., 321 F.R.D. 448, 453 (S.D. Ga. 2017) (holding party is entitled to in-person deposition where witness is a party rather than a “less important witness”.).
    • Where the deposition will involve a voluminous amount of documents, it can be unduly prejudicial for a deposition to proceed. Some courts have refused to order remote depositions on this basis. See, e.g., Webb v. Green Tree Servicing LLC, 283 F.R.D. 276, 280 (D. Md. 2012) (“Courts have held that the existence of voluminous documents which are central to a case, and which the party intends to discuss with the deponent, may preclude a telephonic deposition.”); In re Fosamax Prods. Liab Litig., 2009 WL 539858 at *2 (“He is likely to be presented with numerous documents . . . , making anything other than a face-to-face deposition unwieldy.”); Willis v. Mullins, 2006 WL 894922, at *3 (E.D. Cal. April 4, 2006) (requiring in-person deposition in light of “unreasonable restraints” of video conferencing, “especially concerning the review and use of documents”); Silva Run Worldwide, Ltd. v. Gaming Lottery Corp., 2003 WL 23009989, at *2 (S.D.N.Y. Dec. 23, 2003) (rejecting telephonic or video deposition because of importance of testimony and volume of documents). Even if the deposition does proceed, the parties will want to carefully consider the most efficient and beneficial way to provide the deponent with the exhibits, including considering the disadvantages of providing exhibits to a deponent in advance and allowing him or her to review the documents before providing testimony
  • Finally, remote depositions may implicate confidentiality concerns. As Zoom, a remote conferencing platform, has boomed in popularity in recent weeks, major security issues have surfaced including “zoombombing” – the entry of uninvited participants to zoom meetings. While it does not appear this issue has made it to the courts yet, in the event a deposition involves sensitive information, such as corporate trade secrets or HIPAA protected medical records, it may be necessary to conduct the deposition in person to protect client confidentiality.

In conclusion, litigants are presently dealing with unprecedented barriers to discovery. COVID-19 presents unique and novel concerns that may prevent adequate access to depositions that satisfy due process rights. Requiring that depositions proceed in these circumstances may constitute undue prejudice to the right of litigants to have full and fair access to important discovery.