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By Thomas Hubert and Jacob Pritt
With the COVID-19 pandemic still ongoing throughout the United States, lawyers have had to come up with creative solutions to complete discovery, particularly when it comes to taking depositions. Over the past few months and for the foreseeable future, most depositions are taking place, at least in part, using videoconferencing technology. As these depositions have become more widespread, some attorneys have asked courts to require in-person depositions.
A federal court in Chicago recently considered a request for an in-person, rather than remote, expert deposition. In Sonari Systems v. Romano, et al., No. 16-cv-3371 (N.D. Ill. July 13, 2020), an employer sued its former employee and his new company alleging theft of information and breach of fiduciary duty. When it was time to depose the defendant company’s expert, plaintiff’s counsel stated it would conduct the deposition in person. The defendant asked the court for a protective order requiring the deposition to take place remotely due to the pandemic.
Defendant’s counsel cited safety concerns along with interstate travel that would be required for the deposition. In response, plaintiff’s counsel argued that defendant’s counsel could call or videoconference into the deposition to defend it, while still allowing plaintiff’s counsel to be in the same room as the expert. Plaintiff’s counsel cited concerns with assessing witness credibility and navigating the many documents discussed in the deposition.
The court began its analysis by noting that courts around the country have moved largely to videoconferencing rather than in-person meetings for hearings, conferences, and other court activities. The court also noted travel restrictions in Illinois and Massachusetts (where defendant’s counsel was based). The court then cited cases from Chicago, New York, Minnesota, and New Orleans, all also requiring depositions to take place remotely due to the pandemic.
While acknowledging the value of taking a deposition in person, the court noted that videoconferencing still allows the attorney taking the deposition to assess a witness’s credibility, perhaps even more so than a deposition in person with the deponent wearing a face mask. Acknowledging the difficulties in reviewing documents remotely, the court noted that these difficulties did not outweigh the health concerns of defendant’s counsel and the expert. The court concluded that the deposition thus needed to take place over videoconference.
Videoconference depositions are here to stay, at least in the short term, and likely in the long term as attorneys and clients realize they are a feasible, cheaper alternative to depositions that require interstate travel. Courts are rejecting concerns about difficulties related to videoconference depositions in light of the pandemic, so attorneys and litigants must be prepared to engage in this type of discovery.
This article was originally published on Jones Walker’s Trade Secret Insider Blog and is shared here with full permission from the authors.