The COVID-19 pandemic has closed courthouses from coast to coast for all but essential proceedings. Most civil trials and hearings are on hold. Some courts are encouraging, and in some cases ordering, the continuation of discovery — including depositions using video or audio conferencing. Others have extended discovery schedules to await easing of pandemic restrictions. This post examines the different approaches courts are taking and the arguments litigants might make — or respond to — about whether to proceed with remote depositions. In a second post, we’ll discuss practical considerations for lawyers who choose to — or are ordered to — proceed with remote depositions.

The Trend Toward Remote Depositions

Until now, remote depositions have been mostly optional and relatively rare. Court rules and case law provide little guidance. Federal Rule of Civil Procedure 30(b)(4) offers an option without specifics, stating that “parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.” State rules typically allow parties the option to take depositions remotely but do not require them to do so. But some courts are now entering orders that encourage or even require remote depositions during the pandemic, though many exempt health care providers dealing with the crisis.

For example, the New Jersey Supreme Court entered a Second Omnibus Order that provides to “the extent practicable through May 31, 2020, depositions should continue to be conducted remotely using necessary and available video technology … [but] all depositions and appearances for any doctors, nurses, or healthcare professionals involved in responding to the COVID-19 public health emergency … will remain suspended … through May 31, 2020, except for appearances and depositions (i) that are requested by the doctor, nurse, or healthcare professional; or (ii) that are for matters related to COVID-19.”

The Philadelphia, Pennsylvania, state court suspended all trials through May but directed that to “the extent practicable, depositions should be conducted remotely through telephone, videoconference, or similar technology,” while “appearances for doctors, nurses, or other healthcare professionals who are substantially involved in responding to the COVID-19 public health emergency are suspended” indefinitely.

The Illinois Supreme Court amended Supreme Court Rule 206 to facilitate remote depositions. The deponent is no longer required to be physically present in the same place as the officer administering the oath and recording the deposition, and time “spent at a remote electronic means depositions in addressing necessary technology issues shall not count against the time limit for the deposition.”

By contrast, in New York the Chief Administrative Judge issued an Order on March 19, 2020, urging parties to agree on 90-day extensions of discovery deadlines and assuring that parties would not be “penalized if discovery compliance is delayed for reasons relating to the coronavirus public health emergency.”

Federal courts have addressed the issue mostly on a judge-by-judge, or case-by-case, basis. For example, Chief District Judge Rodney Gilstrap in the Eastern District of Texas issued a Standing Order for his civil cases stating that “depositions of witnesses may need to be conducted remotely with all participants separated,” even as it acknowledged that the process “especially for first-time witnesses unfamiliar with the process, may be an uncomfortable experience.” Some federal courts have ruled that depositions must proceed remotely, see, e.g., In re Kurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-MD-2542 (S.D.N.Y. Mar. 16, 2020), while others have concluded that some, including entity depositions under Rule 30(b)(6) or document-intensive depositions, should not proceed in that fashion. See, e.g., Roo v. Costco Wholesale Corp., No. 19-cv-1120 (S.D. Cal. Apr. 2, 2020); C.W. v. NCL (Bahamas) Ltd., No. 19-cv-24441 (S.D. Fla. Mar. 21, 2020).

Remote Depositions: Maybe an Attractive Option, But Not for Everyone

In this rapidly changing environment, litigants must decide whether remote depositions are the best way to proceed, and if not, whether and how they might be limited. That will require assessment of many factors, including how savvy the witness is, how comfortable the lawyer and witness are with the technology, how many parties and lawyers will participate, and how many documents must be reviewed and discussed in the deposition.

Some parties may argue that face-to-face interaction is essential and that all depositions should be postponed rather than conducted remotely. That may carry the day if the judge sees the deposition “dynamic” the same way, if there is a substantial amount of time left in the discovery schedule, or if the rescheduling of earlier listed cases will delay trial anyway, so that there is no need to rush to complete discovery.

But some judges have decided that depositions must proceed even if remote methods are less than ideal, and in these cases lawyers who want to avoid or limit remote depositions will have to tailor their arguments to the specific circumstances.

Among the issues that lawyers will need to address, whether they want to take or stop a remote deposition, are these:

• Whether the witnesses have the necessary technology and know how to use it. Some courts have concluded this is not an issue because lawyers and court reporting firms can provide the technology and instruction on how to use it. See, e.g., Order, Grano v. Sodexo Management, No. 18-cv-1818-GPC)(BLM) (S.D. Cal. Apr. 24, 2020). But witnesses, especially if they are part of the most vulnerable populations, may object to forced exposure to vendors delivering or installing equipment.

• The lawyers or clients, now working remotely, may lack access to necessary files or notes to prepare, though many materials are now stored electronically and most firms have some ability to find and ship documents.

• Some remote depositions may be difficult to conduct if a large number of parties and lawyers will participate, or if the depositions require use of many lengthy or complex documents. Technologies available to share exhibits though remote sharing are often awkward. Some lawyers avoid these limitations by circulating paper exhibits in advance, sometimes in sealed envelopes with agreements not to open them until they are identified during deposition. Some courts have chosen to preclude certain depositions based on these considerations; others may choose to proceed while waiving requirements for contemporaneous objections (to avoid having multiple lawyers interjecting), or to lengthen the time for deposition (to account for the added time dealing with technical issues).

• Some witnesses may be dealing with unique work or professional demands due to the pandemic that make an appearance difficult in the near term. This is most likely to be an issue with healthcare workers (who may already be exempt by court order) but it also could apply to scientists or others working on COVID-19 issues.

• Some witnesses may be unable to proceed because of personal circumstances, such as obligations to care for young children who are at home while schools are closed, or to care for family members who are infected or being treated.

• Depending on the case, some parties may conclude that a requirement to take remote depositions is unfair because the other side may be able to take other depositions “live” at a later time when pandemic restrictions are eased. Some courts may require that all depositions proceed remotely, even as conditions change, so that everyone operates under the same limitations. (If required to take a remote deposition a lawyer may argue that all other lawyers also be remote, because it is unfair for the lawyer taking the deposition to be connected remotely while the defending lawyer sits in the room with the witness. If it is unsafe for one lawyer to be there it should be unsafe for all.)

Litigants confronted with these issues will need to consider the rules and orders in the relevant courts and the attitudes of their assigned judges. Litigants who conclude that remote depositions are not the best option for them may need to negotiate limitations and try to save some key depositions to be taken in person at a later time, rather than objecting to all remote depositions, if the court makes clear it wants depositions to proceed remotely.