Any lawyer practicing for more than five minutes has heard of the lawsuit called Jarndyce and Jarndyce. Charles Dickens constructed his great (in size and merit) novel Bleak House around the fictitious case, which drew together the fates of a large cast of characters. Jarndyce and Jarndyce concerned the interpretation of a will, occupied the dreaded Chancery Court for decades and generations, and culminated in an estate thoroughly depleted by legal fees. Nobody won but the lawyers.
Many critics consider Bleak House to be Dickens’s masterpiece. A reason commonly cited for this high estimation is the book’s masterly critique of England’s legal system. While we prefer Great Expectations – the protagonist in Bleak House is perfectly virtuous and perfectly dull – we are glad to have read the 990 pages of Bleak House in this Covid summer. As with all of Dickens’s oeuvre, the dramatis personae in Bleak House leap off the page with humanity and eccentricity. Dickens creates characters who enter our lives and stay there. We feel we’ve really met Mr. Micawber, Uriah Heep, Artful Dodger, Magwitch, Miss Havisham, poor Jo the Sweeper, and the formidable lawyers Tulkinghorn, Vohles, Stryver,and Jaggers. Our lives have grown bigger.
Dickens was well acquainted with the law. He was a court reporter before making his mark as a novelist. After he attained success, he was forced to file suits to protect his intellectual property in several of his works, including A Christmas Carol. Even when he won, Dickens felt he lost. The legal costs were exorbitant. Thus, it is little surprise that by the time he wrote Bleak House – which falls into a late and dark period of Dickens’s career – his descriptions of the legal process dripped with cynicism. Here is one of the more famous, and acidic, passages: “The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained throughout all its narrow turnings. Viewed by this light, it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself, at their expense, and surely they will cease to grumble.”
There is much more to Bleak House than the inefficiencies of the court system. As usual with Dickens, we begin with a child of uncertain and/or unfortunate parentage. That young person endures many hardships and indignations. Curious characters abound. Life is unfair and death is never far away. Dickens tells us that “All partings foreshadow the great final one.” One character perished from opium, another from exposure, and one from – believe it or not – spontaneous combustion. Disease floats in the foul London air. Smallpox afflicts a couple of characters. One of the most poignant expirations is from a respiratory disease.
Naturally, that last bit reminded us that we were holed up at home digging through our ambitious reading list because … well, as the young people simply and eloquently put it, because Covid-19. The pandemic has changed everything. It changes what we can do and where we can do it. It certainly has changed the practice of litigation. One respect in which it has wrought that change is the increasing resort to remote depositions.
Let us confess that we have been on many sides of this issue. In some cases, we have resisted remote depositions, beseeching the court to await a return to normality. In others, we have pushed for the right to take remote depositions of plaintiffs now, or soon, and promised to make the remote procedure as effortless as possible. In still others, we opposed lawyers trying to force in-person depositions of our clients, arguing that legitimate health concerns made remoteness essential. Our positions have been blithely inconsistent. But the results have been consistent: courts have made a Covid-19 correction and are in favor of employing remote depositions.
Grupo Petrotemex v. Polymetrix Ag, 2020 U.S. Dist. LEXIS 130391 (D. Minn. July 23, 2020), is the latest example, or at least the latest of which we are aware. There is a veritable pandemic of court decisions favoring remote depositions. Grupo Petrotemex was a patent dispute, a field as obscure to us as Jarndyce v. Jarndyce was to all its hapless litigants. But the issue regarding remote depositions was clear enough in Grupo Petrotemex. The plaintiff sought to depose the defendant’s employees and 30(b)(6) designees. The defendant proposed that those depositions be conducted remotely, with the witnesses physically located in Switzerland. The reason for the remoteness was, of course, Covid-19. Physical proximity and travel seem like very bad moves in an era of Covid-19, a disease that is easily transmittable and that is fatal in a non-trivial percentage of cases.
The plaintiff preferred to take in-person depositions. Its proposal was to conduct the depositions in St. Maarten. Now, in general, meeting up in St. Maarten is a splendid idea. It is part of a beautiful island in the Caribbean split up between Dutch (St. Maarten) and French (St. Martin) sides. Legend has it that the demarcation of the island was decided by having a Frenchman, fortified by wine, and a Dutchman, fortified by Holland gin, walk around the island in opposite directions, with a line being drawn across the island connecting the beginning and meeting points. Apparently wine is better fuel than gin, as the French got the bigger part of the island.
Despite St. Maarten’s obvious charms, the defendant declined the tropical invitation, arguing that witnesses would be required to self-quarantine upon returning from St. Maarten. Moreover, even though St. Maarten has a low incidence of Covid-19, it isn’t zero. To get to St. Maarten, the witnesses and lawyers would likely need to connect through Miami. Have you seen the Covid-19 rates in South Florida? Have you ever pushed your way through the mass of humanity sojourning in Miami International Airport? The travel and in-person contact necessarily would expose the witnesses and everyone else to a substantially greater risk of contracting Covid-19 than if the depositions proceeded remotely.
The lawyers on both sides of this dispute are excellent. We have been cocounsel with the firms. They made the best possible arguments for and against remote depositions. The Magistrate Judge ruled in favor of the defendant, reasoning that remote depositions were good enough, and were certainly safer. The plaintiff objected to this ruling, contending that the other side had done nothing but present general concerns, which should not be enough. The witnesses had not filed declarations identifying any specific health concerns. So why not a brief deposition idyll in lovely St. Maarten?
The district court ruled that the Magistrate Judge got it right. Federal Rule of Civil Procedure 30(b)(4) sets out that depositions may “be taken by telephone or other remote means.” That provision isn’t there for nothing. The Grupo Petrotemex court cited a gaggle of June/July 2020 cases favoring remote depositions as the “new normal” in the wake of the Covid-19 pandemic. The technology for doing remote depositions, including the sharing of documents, exists. It might not be perfect, but it is pretty good. Balancing that pretty good against even a small risk of getting Covid-19 made the court’s decision in favor of remote depositions pretty easy. The Grupo Petrotemex court pointed out that “[s]hould these deponents or counsel become ill while in St. Maarten, they would be thousands of miles away from home, their families, and their own medical providers.” (Imagine getting sick in West Virginia! JK, West Virginia lawyers. Please hold your angry emails.)
The Grupo Petrotemex decision recognizes the Covid-19 “new normal,” and adds to the judicial consensus that remote depositions are part of that “new normal.” Remote depositions might be flawed and, especially to technophobes, a tad vexing. But they are usually good enough, easy enough, and not quite bleak.