{"id":900768,"date":"2023-01-19T15:42:47","date_gmt":"2023-01-19T22:42:47","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=900768"},"modified":"2023-01-19T15:42:49","modified_gmt":"2023-01-19T22:42:49","slug":"remote-deposition-good-cause","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/remote-deposition-good-cause\/","title":{"rendered":"Do You Have Good Cause for a Remote Deposition?"},"content":{"rendered":"\n

Esquire Deposition Solutions<\/a><\/p>\n\n\n\n

For litigators seeking to conduct a deposition remotely<\/a> over an opponent\u2019s objection, the watchword is \u201cgood cause.\u201d 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.<\/p>\n\n\n\n

During and after the COVID-19 pandemic, the term \u201cgood cause\u201d 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\u2019s 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.<\/p>\n\n\n\n

Federal Courts Require Legitimate Reasons for Remote Depositions<\/strong><\/p>\n\n\n\n

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 \u201cgood cause\u201d 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.<\/p>\n\n\n\n

In a recent case, Tsien v. Board of Regents of the University System of Georgia<\/em>, 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 \u201clegitimate reasons\u201d or \u201cgood cause\u201d 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.<\/p>\n\n\n\n

The trial court in Dubuc v. Cox Communications Kansas LLC<\/em>, No. 21-cv-2041 (D. Kan. Sept. 5, 2021), was likewise unpersuaded by another plaintiff\u2019s 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 \u201cmoderate persistent asthma\u201d and cited guidance from the Centers for Disease Control and Prevention \u201c[a]void crowds and poorly ventilated spaces,\u201d and \u201c[a]void non-essential travel.\u201d<\/p>\n\n\n\n

Not good enough, according to the Dubuc<\/em> court. The court said that the plaintiff\u2019s assertions fell \u201cfar short of demonstrating good cause to require that her deposition be conducted by videoconference.\u201d The court said it was sympathetic to the defendant\u2019s 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.<\/p>\n\n\n\n

\u201cIt shouldn\u2019t come as any great surprise to plaintiff that defendant and its counsel want an opportunity to be \u2018up close and personal\u2019 when they assess what kind of witness she might make if this case ever gets to a jury,\u201d the court remarked. It ordered the deposition to be conducted in person but in accordance with CDC guidelines for indoor gatherings.<\/p>\n\n\n\n

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 \u201cpermit testimony in open court by contemporaneous transmission from a different location\u201d upon a finding of \u201cgood cause in compelling circumstances.\u201d<\/p>\n\n\n\n

A very recent case, BluestarExpo Inc. v. Enis<\/em>, No. 21-20875-Civ-Scola (S.D. Fla., Oct. 17, 2022), explained that a compelling circumstance is an unexpected<\/em> circumstance \u2014 an accident or illness that prevents the witness from traveling to the courthouse. In Bluestar Expo<\/em>, 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\u2019t satisfy Rule 43(a), the court held. \u201cThe difficulties in procuring in-person testimony here were all reasonably foreseeable,\u201d it said.<\/p>\n\n\n\n

But States Encourage Greater Use of Remote Depositions<\/strong><\/p>\n\n\n\n

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\u2019s objection.<\/p>\n\n\n\n

In New York, Rule 37<\/a> 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.<\/p>\n\n\n\n

\u201cGood cause\u201d requires the court to consider the following non-exhaustive list of factors:<\/p>\n\n\n\n