Ex-BigLaw Atty's In-Person Depo Bid Tossed As 'Tomfoolery'

By Lauren Berg
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Law360 (June 24, 2020, 9:35 PM EDT) -- A New York federal judge on Wednesday ripped a fired King & Spalding associate's demand for in-person depositions in his wrongful termination suit against the law firm as "tomfoolery," saying the current coronavirus health crisis makes such in-person meetings too dangerous.

U.S. District Judge Valerie Caproni denied former King & Spalding LLP associate David Joffe's motion to reconsider a June 4 order that quashed his bid to physically depose former colleagues Meredith Moss and David Fine, saying it would constitute an undue burden to force the attorneys to appear for in-person depositions.

"The court sees no reason to increase the danger to the health of the non-party witnesses by requiring in-person depositions and rejects this latest tomfoolery," Judge Caproni said.

Joffe is seeking to depose the attorneys in his Employee Retirement Income Security Act suit alleging King & Spalding cost him retirement benefits by firing him after he raised ethical concerns about a senior attorney.

Judge Caproni ordered remote depositions earlier this month, saying in-person interviews are too dangerous during the pandemic. Because Moss and Fine would have to "travel across state lines … congregate for several hours in a confined space, and then disperse back to their homes," physical depositions are too risky, she said.

The judge reiterated that thinking in her order Wednesday denying Joffe's motion for reconsideration. She said Moss and Fine's testimony is likely not central to the trial andthat they are "merely two out of ten K&S partners who may testify at trial on substantially the same topics."

Joffe said he wanted to be able to observe the witnesses' demeanor to assess credibility and to question them in a setting similar to trial, according to the order, but Judge Caproni said they would be wearing face masks and seated 6 feet away if the depositions were to take place in person. In a video conference, however, the witnesses wouldn't have to wear masks and their faces would be clear, the judge said.

"While the court does accord some deference to Joffe's personal experience and preferred method of examination ... there can be no question that mask-wearing and distancing significantly diminish the value of in-person testimony and substantially close the gap between in-person and video depositions," Judge Caproni said.

The judge also noted that in-person depositions pose a significantly greater risk of COVID-19 transmission than a remote deposition. She said that while Joffe might be willing to risk exposure to the illness, it's understandable that the witnesses would not be as willing to take that risk.

Judge Caproni denied Joffe's motion for reconsideration, saying in-person depositions would impose an undue burden "during these extraordinary times."

"You win some, you lose some," Joffe told Law360 on Wednesday evening. "The court had initially supported the idea of in-person depositions several weeks prior, and I appreciate the court explaining its reasoning for why it subsequently changed its mind."

Attorneys for King & Spalding did not immediately respond to a request for comment.

Joffe is representing himself.

King & Spalding is represented by Joseph Baumgarten and Pinchos Goldberg of Proskauer Rose LLP.

The case is David A. Joffe v. King & Spalding LLP, case number 1:17-cv-03392, in U.S. District Court for the Southern District of New York.

--Additional reporting by Braden Campbell and Vin Gurrieri. Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Joffe v. King & Spalding LLP


Case Number

1:17-cv-03392

Court

New York Southern

Nature of Suit

Labor: E.R.I.S.A.

Judge

Valerie E. Caproni

Date Filed

May 08, 2017

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