Judge Rejects In-Person Deposition, Citing COVID-19 Risk

By Jon Steingart
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Law360 (July 14, 2020, 6:57 PM EDT) -- A waste hauling company has to make do with remotely deposing witnesses offered by a fleet management technology firm that it says improperly obtained confidential information from a former employee, an Illinois federal magistrate judge has said, finding that COVID-19 health risks outweigh calls for an in-person deposition.

Magistrate Judge Jeffrey Cummings issued a protective order Monday granting tech firm Geotab Inc.'s request that hauler Sonrai Systems LLC depose its witnesses remotely via video conferencing.

Procedural rules governing discovery processes allow a judge who finds "good cause" to set rules for conducting a deposition. The health risks of attorneys and witnesses traveling from one city to another for an in-person deposition certainly qualify as good cause, Judge Cummings said.

He rejected Sonrai's suggestion that some people could get together in person while others join remotely, or that participants could gather in a city that would minimize travel for people who expressed the greatest concern about picking up the novel coronavirus. He also dismissed concerns that deposing a witness in person provides a greater ability for attorneys to assess the deponent's credibility.

"Sonrai's ability to assess witness credibility might actually be impeded during an in-person deposition given the face mask mandates," the order said. Holding an in-person deposition in a large conference room where social distancing can be assured may reduce the need for face coverings, but masks "would certainly still be permitted — if not encouraged," he said.

Judge Cummings ordered Geotab to cover any additional costs the parties experience as a result of switching to remote deposition.

Edward Joyce, an attorney representing Sonrai, said he appreciated the court's attention to the competing interests.

"We have no trouble with it at all," Joyce said. "I respect the magistrate judge's view. He's reflecting, I think, the proper concern for everybody's safety."

An attorney for Geotab didn't immediately respond to a request for comment.

Sonrai filed suit in March 2016 alleging that Geotab and a few other waste hauling companies engaged in unfair trade practices by secretly negotiating with its then-vice president. Sonrai also named the former VP as a defendant in the suit.

Courts have been freely granting requests to conduct depositions remotely, with one magistrate judge in the Southern District of New York commenting on Saturday that it's becoming the "new normal." The lower costs and lighter travel burden have raised speculation that attorneys and courts may be more open to videoconference depositions after the pandemic subsides.

Sonrai is represented by Edward Joyce of the Law Offices of Edward T. Joyce & Associates PC and Joan M. Mannix of Joan M. Mannix Ltd.

Geotab is represented by Michael Albert, Jason Balich and Marie McKiernan of Wolf Greenfield & Sacks PC, and Kathleen Lyons and Arne Olson of Olson & Cepuritis Ltd.

The case is Sonrai Systems LLC et al. v. Romano et al., case number 1:16-cv-03371, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Mike Curley and Cara Bayles. Editing by Jack Karp.

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

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Case Information

Case Title

Sonrai Systems, LLC et al v. Anthony M. Romano et al


Case Number

1:16-cv-03371

Court

Illinois Northern

Nature of Suit

190(Contract: Other)

Judge

Honorable Thomas M. Durkin

Date Filed

March 16, 2016

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