Texas Judge Needs Safety Plan For In-Person Deposition

By Michelle Casady
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Law360 (September 15, 2020, 5:38 PM EDT) -- A Texas appellate court ruled Tuesday that a trial court needs to spell out exactly what coronavirus safety procedures will be in place for an in-person deposition of a corporate representative traveling from Florida to Dallas as part of a suit over a fatal truck crash.

A three-judge panel of the Sixth Court of Appeals in Texarkana conditionally granted a petition from Landstar Ranger Inc. — which is facing a personal injury suit stemming from a February 2016 crash that killed Toni Combest — seeking to force the trial court to allow the depositions of two of its vice presidents, Shelly Seaton, who lives in Illinois, and Kyle Abbott, who lives in Florida, to take place via videoconference.

The panel said Titus County District Judge Robert Rolston didn't abuse his discretion when determining Seaton had presented legitimate reasons for her request for remote deposition, while ordering Abbott, who expressed only general safety concerns, to appear in person. It held that the Texas Supreme Court's emergency order concerning coronavirus safety guidelines "gave the trial court discretion to determine whether a party involved in a deposition could participate remotely by teleconferencing and videoconferencing."

But the panel said Judge Rolston "failed to define sufficient safety procedures necessary for the parties to conduct the in-person depositions" of Abbott, who lives in St. Johns County, Florida, near Jacksonville.

"Other than mentioning that the individuals present at the live depositions should wear masks when they were not speaking, the trial court failed to adopt safety procedures for those depositions, such as social distancing, maximum group size, and other restrictions and precautions necessary to comply with the Supreme Court's emergency orders," the panel held. "Although the trial court required that the individuals present at the live depositions should wear masks when they were not speaking, we do not find that these limited procedures are sufficient to comply with the requirements of the Supreme Court's emergency orders."

According to court documents, Combest was driving to church in February 2016 when she was hit and killed by a truck carrying an oversized load, driven by a Landstar employee. The family filed a first amended petition against Landstar in January 2018, according to the opinion.

Landstar asked Judge Rolston to reconsider his ruling and filed an affidavit from Seaton explaining that she cares for elderly family members and would be required to quarantine for 14 days after returning from Texas. And on Aug. 4, the judge entered an order that Seaton's deposition would "occur via Zoom or in-person in the state of Illinois at the preference of plaintiffs."

But the Sixth Court of Appeals held that Abbott's affidavit expressed general safety concerns related to the coronavirus and noted a corporate travel ban but did not present the court "with any evidence of what specific risk he would be exposed to — beyond risks inherent to any member of the public at large — were he required to travel for, and participate in, an in-person deposition."

The parties did not immediately return messages seeking comment Tuesday.

Justices Josh R. Morriss III, Ralph K. Burgess and Scott E. Stevens sat on the panel for the Sixth Court of Appeals.

Landstar is represented by Jason A. Burris, Michael P. Sharp and Dennis L. Daniels of Fee Smith Sharp & Vitullo LLP.

The family is represented by Brent Goudarzi, Marty L. Young and Geoffrey Hoover of Goudarzi & Young LLP, and John R. Mercy of Mercy Carter LLP.

The case is In re: Landstar Ranger Inc., case number 06-20-00047-cv, in the Texas Court of Appeals for the Sixth District.

--Editing by Adam LoBelia.

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

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