Do You Have Good Cause for a Remote Deposition?

Esquire Deposition Solutions

For litigators seeking to conduct a deposition remotely over an opponent’s objection, the watchword is “good cause.” Good cause is required to obtain permission for a remote deposition. A different kind of good cause is necessary to present remote testimony instead of live testimony in a federal courtroom. Yet another, often more permissive, kind of good cause must be shown to obtain permission for a remote deposition in many state courts.

During and after the COVID-19 pandemic, the term “good cause” was given a workout by litigators in hundreds of federal and state court proceedings. The result: Lawyers became skilled in the conduct of remote depositions, forever changing the way pretrial discovery is conducted in the United States, but the standard for obtaining a remote deposition over an opposing party’s objection did not change. And the standard for deciding whether to allow remote testimony in lieu of live courtroom testimony also remains the same, notwithstanding lingering worries about the increased risk of contracting COVID-19 in a courtroom environment.

Federal Courts Require Legitimate Reasons for Remote Depositions

In the federal courts, Federal Rule of Civil Procedure 30(b)(4) provides that a deposition may be taken by remote means with party consent or by court order. Most federal courts use a “good cause” standard to resolve requests for a remote deposition over the objection of an opposing party. The party requesting a remote deposition must show necessity through legitimate reasons. If this showing is met, then the burden shifts to the other side to make a particularized showing of prejudice if the deposition is conducted remotely.

In a recent case, Tsien v. Board of Regents of the University System of Georgia, No. 121-cv-008 (S.D. Ga. Nov. 12, 2021), the magistrate concluded that travel and quarantine expenses that would allegedly be incurred if the plaintiff was forced to travel from China to the Southern District of Georgia were not “legitimate reasons” or “good cause” to avoid an in-person deposition. The plaintiff elected to file his lawsuit in the Southern District, the magistrate noted, and the plaintiff presented no evidence showing that he was unable to bear international travel expenses.

The trial court in Dubuc v. Cox Communications Kansas LLC, No. 21-cv-2041 (D. Kan. Sept. 5, 2021), was likewise unpersuaded by another plaintiff’s argument for a remote deposition in lieu of traveling from North Carolina to Kansas, the district where she filed her lawsuit. In support of her request for a remote deposition, the plaintiff alleged that she suffered from “moderate persistent asthma” and cited guidance from the Centers for Disease Control and Prevention “[a]void crowds and poorly ventilated spaces,” and “[a]void non-essential travel.”

Not good enough, according to the Dubuc court. The court said that the plaintiff’s assertions fell “far short of demonstrating good cause to require that her deposition be conducted by videoconference.” The court said it was sympathetic to the defendant’s desire to conduct the deposition in person, in view of the facts that potentially $2 million in damages were at stake and the plaintiff had requested a jury trial.

“It shouldn’t come as any great surprise to plaintiff that defendant and its counsel want an opportunity to be ‘up close and personal’ when they assess what kind of witness she might make if this case ever gets to a jury,” the court remarked. It ordered the deposition to be conducted in person but in accordance with CDC guidelines for indoor gatherings.

The federal rule applicable to obtaining judicial permission for presenting remote video testimony instead of in-person testimony is even less hospitable to remote testimony. Federal Rule of Civil Procedure 43(a) authorizes trial courts to “permit testimony in open court by contemporaneous transmission from a different location” upon a finding of “good cause in compelling circumstances.”

A very recent case, BluestarExpo Inc. v. Enis, No. 21-20875-Civ-Scola (S.D. Fla., Oct. 17, 2022), explained that a compelling circumstance is an unexpected circumstance — an accident or illness that prevents the witness from traveling to the courthouse. In Bluestar Expo, the compelling circumstance proffered by the plaintiff was that two of its witnesses simply refused to travel from their homes (upstate New York, and Turkey) to the Southern District of Florida. Mere inconvenience doesn’t satisfy Rule 43(a), the court held. “The difficulties in procuring in-person testimony here were all reasonably foreseeable,” it said.

But States Encourage Greater Use of Remote Depositions

In contrast to federal courts, several state courts are in fact relaxing the required showings of good cause to conduct a deposition remotely over the opposing party’s objection.

In New York, Rule 37 of the Uniform Rules for the Supreme and County Courts (Rules of Practice for the Commercial Division) provides for remote depositions by consent or by a motion demonstrating good cause to conduct the deposition remotely.

“Good cause” requires the court to consider the following non-exhaustive list of factors:

  • the distance between the parties and the witness, including time and costs of travel by counsel
  • the safety of the parties and the witness, including whether counsel, parties, and the witness may safely convene in one location for the deposition
  • whether the witness is a party to the litigation
  • the likely importance or significance of the testimony of the witness to the claims and defenses at issue

New York’s good cause standard took effect Dec. 15, 2021, for all cases in its Commercial Division.

More recently, on Oct. 27, 2022, Washington State relaxed its procedural rules governing remote depositions. The new Washington court rules embody a presumption in favor of remote depositions. In Washington, the burden to show good cause falls to the party opposing a remote deposition. Good cause to conduct a deposition in person is established when there is a substantial, case-specific reason why a particular deposition should not be conducted remotely.

A litigation attorney’s general belief, based on experience, that witnesses are more effectively cross-examined (or defended) when counsel is physically present will probably not meet the new good cause standard. The hurdle for lawyers opposing remote depositions appears to be a high one, although it should be noted that “good cause” is not defined in the new rule.

Key Takeaways

Notwithstanding the rapid adoption of remote technologies by the legal profession during the past few years, it’s unwise to assume that, when push comes to shove, trial courts will routinely order remote testimony over the objection of the opposing side. The best course of action is, as before, to negotiate pretrial discovery matters — including depositions — with the opposing party in a manner that promotes “the just, speedy, and inexpensive determination of every action and proceeding,” as required by Rule 1 of the Federal Rules of Civil Procedure.

Failing agreement on a discovery plan that includes remote depositions, counsel seeking to conduct a remote deposition must be prepared to demonstrate good cause, however that term is defined in their jurisdiction. Don’t overlook local court rules in this regard. Procedures for obtaining and conducting remote depositions can be found in state and federal court rules, local rules, a judge’s individual court rules, standing orders, and case-specific orders and stipulations.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Deposition is Over, Now What?

Esquire Deposition Solutions

INTRODUCTION

Experienced litigators know that a few moments of reflection and planning at the end of a deposition pay big dividends down the road. The deposition’s conclusion is the time to tie up loose ends with opposing counsel, reaffirm any stipulations that might have been made, ensure that the court reporter is properly instructed, and create a post-deposition to-do list that keeps the momentum of the case moving forward.

It’s difficult to overestimate the power of having everyone together, in the same place, at the same time. Misunderstandings and missed opportunities that might take dozens of emails and phone calls over several weeks to iron out can be quickly cleared up in the moments that follow the deposition’s end. Impressions of the deponent’s testimony are fresh, and everyone involved in the deposition is present – either online or in the deposition room. Litigators should carefully weigh the following considerations before wrapping up their next deposition.

DECIDE WHETHER TO TERMINATE THE DEPOSITION OR SUSPEND IT UNTIL ANOTHER DAY

Do not allow yourself to feel rushed when you arrive at the last line of questioning in your outline. Remind yourself of the strategic purpose of the deposition and ask whether that purpose has been achieved. Additional questioning may be necessary; if so, fire away.

Depositions can be “terminated” or “suspended” for another day. The choice you make at the conclusion of the deposition will determine whether further testimony can be obtained from the deponent.Trial courts are generally reluctant to permit multiple discovery depositions of the same witness, so it’s important to make clear on the record that the deposition will be continued at a later date. Choose your words wisely.

In Goins v. County of Merced, No. 1:13-cv-01245-DAD-SKO (E.D. Cal. Dec. 22, 2015), the trial court ruled that an attorney’s statement “I don’t have any other questions at this point” was insufficient to alert opposing counsel that the deposition was to remain open and continue on another day.

PRESERVE THE RIGHT TO FILE AN ERRATA SHEET

Court rules in all jurisdictions give deponents the right to read and sign a transcript of their testimony. If you are the attorney defending the deposition, ask yourself whether or not the deponent should invoke this right. Similarly, deponents have the right to file an errata sheet that can revise both the form and the substance of their testimony.

Court rules vary on the procedure for invoking these rights. In the federal courts, the deponent must assert the right to “read and sign” the deposition prior to the conclusion of the deposition session.

The extent to which deposition testimony can be revised via an errata sheet varies — sometimes significantly — according to court rules.There are also time deadlines. Federal Rule of Civil Procedure 30(e) gives deponents 30 days from the date they receive notice that the transcript is ready in which to file an errata sheet.This rule has teeth: In Hambleton Bros. Lumber v. Balkin Enterprises, 397 F.3d 1217 (2005), the Ninth Circuit held that a late- filed errata sheet was properly rejected by the trial court.

MAKE SURE THAT ALL EXHIBITS ARE IN THE COURT REPORTER’S POSSESSION

Original versions of exhibits offered during a deposition are typically retained either by the court reporter or attached to the transcript.You will want to note carefully who has possession of every document and exhibit used during the deposition.

Depositions may sometimes conclude with numerous exhibits scattered on a conference table or placed elsewhere in the deposition room.The court reporter — and perhaps your client — will appreciate it if you take a moment to make sure the court reporter has accounted for all exhibits.

ORDER THE WRITTEN TRANSCRIPT OR VIDEO RECORDING

Be sure to order the transcript from the court reporter, if necessary, and review with the court reporter any prior understandings regarding due dates and deliverables.

You should make the court reporter aware of critical calendar dates: brief deadlines, trial dates, or any out-of-the-ordinary delivery requirements. It’s easier to address these concerns at the deposition’s end than to scramble as deadlines approach.

In the case of a video deposition, a similar conversation should take place immediately after the deposition concludes.You also should inform the legal videographer of any unique needs. For example, you may want the video to be subtitled or filed in a particular video-recording format. Discuss with the legal videographer the extent to which the video can be edited (if at all).

FOLLOW UP ON EVIDENCE MENTIONED BUT NOT PRODUCED

It is not uncommon for deponents to mention documents or exhibits that were not produced during the deposition.While your memory is fresh, take note of in-deposition mentions of documents that were not produced.

If you requested the deponent to produce these materials, you will want to note the materials you are seeking, in detail, so that you can send a formal request for them soon after returning to the office.

IMMEDIATELY CAPTURE IMPRESSIONS OF THE DEPONENT’S TESTIMONY

Memories fade with time.The conclusion of the deposition is the best time to record what was learned from the deponent. Often these first impressions will include fresh insights on trial strategy, insights on the potential for filing dispositive motions based on the deposition, and determinations on additional witnesses that should be deposed.

Also, many clients insist on a detailed deposition report following each deposition.The moments immediately following the deposition are fertile soil for producing comprehensive, insightful reports to the client.

SUMMING UP

To review the post-deposition considerations:

  1. Decide whether you want additional testimony from this witness.
  2. Preserve your right to file an errata sheet.
  3. Make sure the court reporter has all exhibits.
  4. Order the written transcript or video recording.
  5. Follow up on evidence discussed but not produced.
  6. Immediately capture first impressions of the deposition.

If at all possible, don’t leave the deposition location without attending to these small but crucial administrative chores. Litigators who invest a small amount of post-deposition time tying up loose ends will be rewarded with fewer headaches, happier clients, and better outcomes every time.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Know the Other Side’s Three Goals for Your Deposition

Dr. Ken Broda-Bahm | Holland & Hart

So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the driver’s seat at this stage: The deposition is the other side’s process. Because of that, it helps to devote some thought to what they are looking for. A realistic and complete understanding of your adversary’s goals can help you prepare for your own testimony.

Every case and every opposing counsel will be different, and there may be unique factors in your own situation. At the same time, there are strong currents of common practice that underlie the ways most attorneys conduct their discovery. In this post, I’ll provide an overview of three common and distinct goals that motivate the other side’s deposition. These are goals that every witness should understand and adapt to.

When Taking Your Deposition, Your Adversary Wants to….

Discover

They want to flesh out the facts and to know in advance what you are going to say on all of the major issues.

This, of course, is a proper goal of a deposition: The other side has a right to know what you’re going to say on the relevant issues. So, as the witness, you will want to review what you know of the facts, firm up what you do and don’t remember, and take inventory of what you think on all the topics within your expected sphere of testimony. The other side’s goal is to commit you to a substantive answer in advance of trial, so your answers will have lasting consequences. Should it ever get to trial, you won’t need to give exactly the same answers on the stand, but you will need to be basically consistent with what you say at your deposition, or ready to explain any differences.

Enlist

They want to see if you will help them to support their case theory, or at least part of their story.

They can make their case without you — they have their clients, experts, and arguments. But it helps them if you can add support to at least a part of their case. For that reason, they will see if they can enlist you in that effort by asking you if you’ll accept some of their premises. They may want you to concede specific facts or principles because it gives them a stronger position to argue from if they can stand before a future jury and say, “She already agrees with this.” Of course, if it is true, it is true, and you lose credibility by fighting it. But quite often, what opposing counsel presents to you isn’t just a simple unvarnished fact, but something with selectivity and spin applied to it. It is critical to pause, think, and answer in your own words. And don’t help them where you don’t need to.

Assess

They want to size you up to see how you come across, and especially how you will present yourself if you testify in trial.

Most cases these days are resolved without trial, but they’re often resolved with an eye toward how a trial would have gone if it had happened. Will the witness be confident or nervous, certain or doubtful, unflappable or combative? Performing well on all of those metrics can contribute to the case assessment that each side is making. Plaintiffs in particular don’t want to invest time and money into cases that are unlikely to net a good return. So for the witness, your goal is to testify well, as if to say, “This is how I’ll be on the stand, so factor that into your calculations.”

Ultimately, the goal is to move from the deposition feeling mysterious and uncertain to it being known and controlled. By discussing the facts, practicing the expected testimony, and knowing the other side’s goals, you’ll be better prepared.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Facing A Deposition: Tips And Strategies

Christopher Mills | Jones & Keller

So you’re going to be deposed. How do you prepare? The answer, in part, depends on what type of deposition you are facing. There are several different kinds, including:

  • Those of an individual who is a party to the case
  • A representative of a corporate entity who is a party to the case
  • A third-party witness
  • An expert

Each are different and require unique preparation. Here, I cover specific tips and strategies that can help an individual who is a party to the case handle his or her deposition with confidence.

Preparing yourself or your client for deposition starts with asking: What are the goals of the attorney taking the deposition?

THEIR GOALS

Opposing counsel likely has at least one of three main goals in mind: (1) obtain damaging admissions; (2) preserve testimony for trial; or (3) learn relevant facts, both good and bad.

The opposing counsel may want damaging admissions to support a motion for summary judgment or to impeach you at trial. (To impeach, the attorney would ask you the same question at trial that she asked you at deposition. If you answer differently, she can read, or have you read, your deposition transcript in which you answered differently.)

Occasionally, a third-party witness will not show up to testify at trial. That can happen with parties, too, but rarely since parties are generally required to attend trial. If there is a chance the witness will not show up at trial to testify, the attorney will want to preserve the witness’ testimony with a deposition. Then, the attorney can introduce the deposition transcript or video at trial in lieu of live testimony from the witness.

The most common purpose of a deposition is to learn relevant facts. Key here is that the attorney wants to learn facts that are both good and bad for her case. Opposing counsel wants to know about the bad facts in order to better prepare to deal with them at trial. This is as important as learning of the facts that are good for her case.

YOUR GOALS

Knowing that these are the goals of the attorney taking your deposition, what should your goals be? Simple: Comply with your legal duty to provide truthful and complete answers, but beyond that, don’t do anything to help the opposing counsel achieve her goals. That takes some strategy.

ANSWERING TRUTHFULLY AND COMPLETELY

First, make sure you understand each question before answering. You cannot control your answer if you do not understand the question you are asked. It is not your job to decipher an unclear question. It is the other attorney’s job to ask it clearly. If you do not understand the question, ask for clarification. Keep asking for clarification as many times as it takes until you are certain that you understand the question.

Second, pause before answering. This may feel unnatural because in ordinary conversation, people often start answering a question before the question is even finished. You must resist that urge. Wait for the question to be finished and then take a healthy pause. Why? This pause gives you an opportunity to think about the question, make sure that you understand it, and formulate a careful response.

Also-and this is key-it gives your attorney time to (i) determine whether there is an objection that could be made, (ii) determine whether it makes strategic sense to make that objection, and (iii) make the objection on the record. Without a pause, your attorney has no chance to strategically object.

These pauses will feel awkward. Everyone is staring at you. They are waiting for you to answer the question and it just feels weird to do nothing for a moment. But here is a secret: the court reporter is making a transcript of your deposition. That transcript looks exactly the same whether you pause for a quarter second or you pause for 90 seconds; there is no difference in the transcript.

Even if your deposition is being videotaped, the awkward pauses are very unlikely to matter. The videotape might show the pause, but the videotape and the deposition transcript are hearsay. They do not come in at trial unless you are unavailable to testify live or in case of impeachment. Even with impeachment, attorneys almost always use the transcript, even when a videotape is available. There is no reason to worry about those awkward pauses.

AVOID HELPING OPPOSING COUNSEL ACHIEVE THEIR GOALS

First, do not guess. You don’t know what you don’t know. So long as you are testifying as an individual (and not a corporate representative who is testifying on behalf of an entity), you are under no obligation to guess what questions are going to be asked and research answers ahead of time. So long as it is true, it is perfectly acceptable to answer that you do not know. In fact, it is critical that you not answer questions for which you do not know the answer.

Do not speculate. Again, this is contrary to human nature. In normal conversation, we speculate when we don’t know the answer to a question. We say “I’m not certain, but.”, “I’m not sure, but maybe.”, or “I don’t know, but I’d guess.”.

While these types of conjectures may be normal in everyday conversation, they do not belong in a deposition. Don’t do it. No “buts.” If you start an answer with “I don’t know, but”, whatever follows the “but” is likely to be rank speculation.

Instead, if you don’t know the answer, say that and stop:

  • “I’m not certain.” Full stop.
  • “I’m not sure.” Full stop.
  • “I don’t know.” Full stop.

Second, do not provide more information than is required to truthfully and completely answer the question.

It is human nature to want to try to prove your case. In fact, litigation is, by design, an adversarial process. It is natural to want to prove that you are right and the other side is wrong. And, you do have to prove that you are right, and the other side is wrong. But that happens at trial, not at deposition. Deposition is not the opportunity to prove your case. If you try to prove your case at deposition, you will only help your opponent.

The opposing attorney wants to learn not only facts that are good for her and bad for you, but also facts that are good for you and bad for her. This gives your opponent more time to prepare to deal with those bad facts at trial. When trial rolls around, she will, for example, know what questions to ask because the answers are going to be good for her side, but also what questions to avoid because the answers are helpful to you and harmful to her case. You do not want to give opposing counsel the opportunity to better prepare for trial if you can avoid it.

Also, if you provide too much information, your opponent may learn where to look for additional information helpful to her and harmful to you. Worse, the attorney may be able to surmise your legal strategy based on what facts you are emphasizing and what facts you are not. Do not provide more than what is required in the deposition.

PREPARING FOR THE DEPOSITION

In addition to these general strategies, there are ways to prepare for your specific deposition in your case. Meet with your attorney, preview what questions to expect, and review the documents about which you are likely to be asked at the deposition.

Practice with a mock deposition where your attorney should ask you questions, just like the opposing counsel will at your deposition. Practice how to avoid becoming defensive when you are asked a question in an accusatory manner. While it is natural to get defensive, people tend to talk too much when they do.

If you are practiced and prepared, it will also be easier to remember these tips and strategies and deploy them during your actual deposition.

KEY TAKEAWAYS

  • Take your time. Make sure that you understand each question being asked. Pause. Give your attorney a chance to object.
  • Remember that trial, not deposition, is your opportunity to prove your case.
  • Finally, do not speculate.

A deposition is scary for most people. But it can be manageable, and maybe even a little fun, if you prepare and approach your deposition strategically. Good luck!

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Importance of a Rule 30(b)(6) Deposition

Daniel Ballard | Property Insurance Coverage Law Blog | November 14, 2019

A tool that every policyholder attorney should use is the 30(b)(6) deposition. This is when the policyholder attorney requests the Defendant Insurance Carrier to designate “one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.”1 The testimony of the designee is binding upon the company, regardless of the designee’s personal knowledge of the subject matter.

A policyholder attorney utilizes this deposition as a tool to lock the carrier into testimony that could be used for a summary judgment motion, question the designee as to information provided in the carrier’s discovery responses, and, in some circumstances, obtain further information over and above the information provided from the carrier in its discovery responses.

I was able to obtain critical information in a recent 30(b)6 deposition of a carrier’s litigation specialist. The case revolved around roof damage and whether there was a suitable match for the damaged roof shingles. The policyholder’s position was that the shingles were discontinued and there was not a reasonable match for the existing shingles on the roof. The carrier’s position was that a reasonable replacement could be found at certain local distributers.

The focal point of my deposition was to obtain information as to how the carrier came to the conclusion that there was a suitable match to the roof. I wanted to know the basis of the carrier’s determination, as their discovery responses reflected that no roofing material was taken from the property nor any comparative analyses performed. During the deposition, I was able to pull from the designee that the carrier had, in fact, obtained an ITEL report for the shingle and it had not been produced as part of discovery. Therefore, I made a request for the report on the record. Upon receipt of the report, it was discovered that the ITEL report found not only that the shingle was discontinued, but the recommended replacement “is not a suitable individual tile repair type product and only recommended as a total Slope/Repair.” This information was critical in not only proving that the shingle was discontinued, but also that it couldn’t be functionally repaired even if there was a similar color.

Another benefit of the 30(b)(6) deposition is that carrier representatives, like most people, hate being deposed, and requesting the 30(b)(6) deposition can sometimes be the push needed for insurance carriers to start talking in terms of a settlement. There have been a few instances where I have had to file and obtain Orders to Compel the deposition of a corporate representative and then subsequently have the insurance carrier settle days before the Court-Ordered deposition.

30(b)(6) depositions are an integral part of a policyholder attorney’s case. It is part of a Merlin Law Group attorney’s practice to take these depositions and Merlin Law Group has the resources to ensure that its attorneys can take the necessary investigative steps to win their cases. If you have a property damage loss that needs legal assistance, please contact our office.
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1 FRCP Rule 30(b)(6).