By Eric Andrew

Law360 (April 30, 2020, 5:39 PM EDT) --

Eric Andrew

As litigants explore and consider utilizing new technology to conduct depositions, some are facing opponents that are seeking to force the use of videoconference depositions. These advocates for videoconference depositions are citing the delays caused by the current COVID-19 restrictions in examinations that would, before the current restrictions, be conducted in the normal course of litigation. 

While it is true that in some cases depositions are amenable to being conducted by remote or video means, the facts of a particular case, an attorney's belief that a video deposition is not in the best interest of his client, specific client or insurance company policies, and other technical or logistical issues may be grounds for an attorney to resist proceeding with a video deposition. 

While there is precedent for courts to order video depositions, it is unclear whether, under the current COVID pandemic, mere delay is grounds for such an order.

Rule 3113(d) of the New York Civil Practice Law and Rules provides that the parties "may stipulate" to conduct a deposition by electronic means. Consequently, a party's unilateral request to conduct a deposition by electronic means has historically been denied where it is merely for the convenience of that party and the movant fails to show that it would be an "undue hardship" for the deposition to be conducted in the venue where the proceeding is pending.[1]  

Rule 3113(d) has been interpreted to provide that, although one party cannot insist upon conducting a deposition by electronic means without a court order, its provisions do not circumscribe the discretion of the court to order a deposition by such means, in the interest of justice, where to rule otherwise would create an undue hardship upon the party to be deposed.[2] 

Note that the general purpose for requesting a remote or video deposition has previously been location issues. Given the current situation, we now have demands for remote or video depositions being made solely for the purpose of time, wanting to do the deposition now as opposed to a time when travel to a location where the deposition can be done in person is safe.

The New York chief administrative judge of the courts has already issued an order discouraging in-person appearances or travel, encouraging the parties to postpone discovery proceedings for 90 days and removing penalties for noncompliance with discovery timelines.[3]

While parties may stipulate to, and courts have ordered, remote depositions of parties, pursuant to CPLR Rule 3103(a)[iv], to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice," the reported cases on this issue deal with the deposition of parties, and more often than not, plaintiffs that have moved out of New York or overseas. 

In New York, the courts have allowed plaintiffs to avoid traveling from China and appearing by Skype, for example in Yu Hui Chen v. Chen Li Zhi.[5] In another case, Wygocki v. Milford Plaza Hotel, the issue was of age and travel difficulties combined with the fact that the plaintiff resided in Northern Ireland and was unable to travel.[6]

In Kuriakose v. Motor Vehicle Accident Indemnification Corp., the plaintiff resided in India and had difficulties, both physical and financial, in traveling for a deposition in New York.[7] Even plaintiffs who resided in the state and left for personal reasons have been allowed to be deposed remotely, for example in Gabriel v. Johnston's LP Gas Service Inc.[8] And plaintiffs' motions to be deposed remotely have been granted where the financial imposition is great, and they are otherwise unable to travel, for example in Feng Wang v. A & W Travel Inc.[9] 

Defendants have also compelled depositions to take place in other states due to the "undue hardship" that appearing in New York would impose on them. One of those hardships, in Snyder v. Parke Davis Co., was a company regulation that prohibited the removal of materials from its building in Michigan. As a result, the Appellate Division of the Supreme Court of New York, First Department, ordered the deposition of the defendant corporation to be conducted at their headquarters in Detroit.[10] 

Defendants have shown that distance and expense can be hardships that warrant the taking of their deposition by video means. In one fairly typical case, Kozak v. Marshall, the defendant resided and was employed in California and traveling to New York would present a personal and financial hardship.[11]

In Rogovin v. Rogovin, the defendant requested that she be excused from the requirement of conducting the deposition in the jurisdiction where the case was venued and showed hardship due to having to travel from her home in Kansas to New York City to be deposed, since she was the sole caregiver for her ailing grandmother and daughter. Upon this showing, the court allowed her deposition to be conducted by video conferencing.[12]   

As in the plaintiff deponent cases above, the defendant deponent cases involved the deposition of a party. Like nearly all the cases involving a plaintiff, the issue is the cost and extreme hardship that would be incurred in order to travel for the deposition. 

Motions to compel video depositions are made under the authority of CPLR Rule 3103(a)'s criteria to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice."[13] There must be some showing of undue hardship or prejudice. 

Courts have denied motions for a protective order from out-of-state defendants seeking to avoid appearing in New York where there is not a significant hardship proven. One example is LaRusso v. Brookstone Inc., where a defendant was headquartered in Merrimack, New Hampshire, and failed to demonstrate that the appearance for a deposition in Suffolk County, New York, constituted an undue hardship.[14] 

Delay, without some showing of prejudice, is not a consideration or ground for a protective order.[15] It is likely that the same would be true for parties seeking to compel remote depositions by videoconference absent the pandemic. What the courts will determine is a necessary element to order a remote or video deposition remains, for the current time, yet to be seen.

Unlike party depositions, taking a nonparty witness deposition is left to the court's discretion where there is no stipulation between the parties.[16] Although it has often been held that the deposition of a nonparty witness may not be had without a showing of special circumstances (such as "hostility"), there is a tendency by the courts to adopt a more liberal view.[17] Based on this liberal view, parties may compel the deposition of nonparties.[18] 

However, New York courts have no authority to compel by subpoena out-of-state, nonparty depositions.[19] There is a dearth of cases dealing with compelling nonparty depositions by video. As noted above, the criteria the courts consider is the hardship on the parties, without mention of nonparties.

The cases that deal with nonparties mainly deal with the issue of preserving the witness's testimony for trial through the standard video recording of in-person depositions.[20] Again, the ability to demand a deposition of a nonparty, like that of a party, is likely going to be argued in the coming months.

It is anticipated that most of the motions to compel video deposition via Skype, Zoom, or other videoconferencing technology will be grounded in eliminating delays in the prosecution of the case, either by plaintiffs or defendants. The opposition to such motions will likely be due to unfamiliarity with the technology, distrust of the procedure, belief that the case or deposition is not suitable for this means of deposition, company and client policies, or a plain personal preference for in-person examinations. 

Of those grounds, our belief is that the strongest, and most likely to prevail, is that an attorney believes her client will be prejudiced by not having the ability to depose a party in person, whether it is his or her client, an opposing party, or a nonparty. This time-honored right, to look at the witness in person while questioning, is not one to be lightly dispensed with. 

As noted, delay, in and of itself, will likely not be grounds for an order compelling a deposition by remote conferencing. However, opponents should have reasoned and articulable points in opposition.

In some cases, the proposed deposition will not alleviate a delay in the case as other aspects of the case may continue to hinder the progress of the case due to the New York governor's executive order tolling statutes of limitations and the judicial administrative order, making even an argument of delay moot. Counsel who are generally opposed to conducting depositions by videoconferencing should consider, in the appropriate case, the advantage of moving cases toward resolution. 

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Eric D. Andrew is an associate at Hurwitz & Fine PC.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] LaRusso v. Brookstone, Inc. , 52 A.D.3d 576, 860 N.Y.S.2d 179 [2008].

[2] Am. Bank Note Corp. v. Daniele , 81 AD3d 500, 501 [1st Dept 2011]; see also In re Estate of Singh, 22 Misc 3d 288, 289-90 [Sup Ct 2008].

[3] Administrative order of the Chief Administrative Judge of the Courts AO/71/20, March 19, 2020.

[4] "Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." CPLR Rule 3103(a).

[5] Yu Hui Chen v. Chen Li Zhi , 109 AD3d 815 [2d Dept 2013].

[6] Wygocki v. Milford Plaza Hotel , 38 AD3d 237, 237 [1st Dept 2007].

[7] Kuriakose v. Motor Veh. Acc. Indem. Corp. , 169 AD3d 502 [1st Dept 2019].

[8] Gabriel v. Johnston's L.P. Gas Serv., Inc. , 104 AD3d 1262 [4th Dept 2013] (undeposed plaintiffs who had returned to Guatemala were to be deposed in Guatemala via video conference).

[9] Feng Wang v. A & W Travel, Inc. , 130 AD3d 974, 977 [2d Dept 2015] (By showing Plaintiff's applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, the plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship); Kirama v New York Hosp., 13 Misc 3d 1246(A) [Sup Ct 2006] (plaintiff had the extreme hardship of not be able to legally travel to New York because she could not secure a visa).

[10] Snyder v. Parke, Davis & Co. , 56 AD2d 536, 536 [1st Dept 1977].  

[11] Kozak v. Marshall , 9 Misc 3d 1114(A) [Sup Ct 2005].

[12] Rogovin v. Rogovin , 3 AD3d 352, 353 [1st Dept 2004].

[13] Am. Bank Note Corp. v. Daniele , 81 AD3d 500, 501 [1st Dept 2011].

[14] LaRusso v. Brookstone, Inc. , 52 AD3d 576, 577 [2d Dept 2008].

[15] Cabrera v. Abaev , 150 AD3d 588 [1st Dept 2017] see also Mosele v Bures, 139 Misc 2d 409, 411 [Sup Ct 1988].

[16] Judiciary Law § 2–b[1].

[17] Kenford Co. Inc. v. Erie County , 41 AD2d 586 [4th Dept 1973].

[18] Cavaretta v. George , 270 AD2d 862, 862 [4th Dept 2000].

[19] Matter of In re Oxycontin II , 76 AD3d 1019, 1021 [2d Dept 2010] citing Judiciary Law § 2–b[1]; Wiseman v. American Motors Sales Corp. , 103 A.D.2d 230, 234, 479 N.Y.S.2d 528 ["service of a subpoena on a nonparty witness outside this State is void because no authorization for such service exists"] ).

[20] Roche v. Udell , 155 Misc 2d 329, 332 [Sup Ct 1992] see also Bichler v. Eli Lilly , [50 A.D.2d 90], 376 N.Y.S.2d 144 [A.D. Dept. 1, 1975], (the court allowed a videotaped deposition of an aged non-party Californian who was willing to return to the jurisdiction for trial); Rubino v. G.D. Searle & Co. , [73 Misc.2d 447], 340 N.Y.S.2d 574 [Nassau County, 1973( the Court permitted a videotaped deposition of a non-party witness who had suffered an acute myocardial infarction and would not be available to testify at trial); Mosel by Mosel v. Brookhaven Memorial Hospital , [134 Misc.2d 73] 509 N.Y.S.2d 754 [Suffolk Cty., Special Term, 1986].

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