What follows is another “guest post” by our blogger-in-training Dean Balaes.  This one concerns remote corporate Rule 30(b)(6) depositions and a recent decision addressing them.

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In many respects, COVID-19 has created (to use the overused term) a new normal for the legal profession.  When California became the first state to issue a stay-at-home order in its attempt to prevent the spread of COVID-19, courts were faced with a choice:  delay court proceedings and further delay the already-backlogged legal system, or embrace technology and move proceedings online.  Since March, the Federal Rule of Civil Procedure 30(b)(6), governing depositions of corporate representatives, has become a hotly contested rule.  As the blog has already discussed, and for a variety of strategic reasons, attorneys question whether courts should still require in-person 30(b)(6) depositions or allow them by videoconference.  Siding with the latter, Rouviere v. DePuy Orthopaedics, Inc., No. 1:18-CV-04814, 2020 WL 3967665 (S.D.N.Y. July 11, 2020), showcases judicial willingness to rethink pre-COVID discovery principles to move discovery along.

The controversy in Rouviere arose when plaintiffs essentially gave the court an ultimatum:  demanding that it “either order the [defendants] to appear for an in-person deposition on the date cleared for deposition or extend the deadline … until the deposition of [the witness(es)] can be conducted in person.”  Rouviere, 2020 WL 3967655, at *2.  The disruptive nature of this request placed the court in an impossible situation, because nobody could say when in-person depositions would be feasible.  The court had to decide whether to imperil the health and safety of the defendants’ personnel and counsel or to “indefinitely delay the completion of discovery[.]”  Id. at *4.

Despite the ongoing global pandemic, plaintiffs’ counsel argued that they would rent a “recreational vehicle” and drive it from Florida (a hot zone) to New Jersey in order to take depositions.  Id. at *2.  Defendants rightly objected to this idea, noting that counsel and witnesses would “place their health at risk by attending an in-person deposition with the Florida plaintiffs” and noted “that all travelers from Florida are subject to [a] 14-day quarantine in New Jersey.”  Id.  Instead of an in-person deposition, defendants recommended that depositions be conducted through videoconference.  Id.

In deciding the issue, the court began its analysis by weighing the prejudice imposed on the defendants if a 30(b)(6) deposition were held in-person against the prejudice to the plaintiffs if depositions were held by videoconference.  Id. at *3.  On the one hand, defendants argued that they could face the ultimate prejudicial prospect of death.  Id.  On the other, plaintiffs argued that they would face prejudice with a videoconference because the deposition will be “document intensive” and “document laden.”  Id.  Agreeing with what seems obvious, the court acknowledged the “significant health risk[s]” to the witnesses and counsel if depositions were held in person, since COVID-19 is “potentially fatal with the ability to spread through asymptomatic or pre-symptomatic carriers, with no approved care, treatment, or vaccine[.]”  Id. (quoting Joffe v. King & Spalding LLP, No. 17-CV-03392, 2020 WL 3453452, at *7 (S.D.N.Y. June 24, 2020)) (footnote omitted).  As for plaintiffs’ concerns, the court emphasized the reality of modern legal practice.  That is, the document-intensive nature of the practice of law “is not an obstacle to a successful remote videoconference,” especially when counsel can watch “training and informational videos” and work with vendors who host videoconference depositions to learn the ins and outs of videoconferencing.  Id.; cf. Model Rules of Pro. Conduct r. 1.1 cmt. 8 (2018) (requiring attorneys to keep abreast of relevant technological changes).

Since each case is unique and has different needs, it is likely that Rouviere’s procedural history might have enhanced the court’s willingness to proceed with videoconference depositions.  Rouviere was already pending for over two years; within this time frame, the court had already granted three extensions of discovery deadlines due to COVID-19.  Id. at *2.  According to the docket, this case was filed in the S.D.N.Y. by a Florida lawyer (on behalf of himself and his wife) who initially appeared as a pro se plaintiff, did not seek pro hoc admission for over a year and who failed to take a voluntary dismissal.  After plaintiffs made a fourth request for an extension, the court granted “one final extension,” outlining new discovery deadlines.  Id.  As a general rule, plaintiffs who think they have strong cases tend to resist multiple extensions.

Pursuant to Fed. R. Civ. P. 30(b)(3) and (b)(4), the court ordered that “all depositions in this action may be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means” (emphasis added).  Since discovery deadlines were already extended due to counsel’s COVID-19 concerns, it seems only practical that the court would permit the use of videoconferencing, especially when the court noted that even if the parties met in person, they would all have to wear face masks.  Id. at *4.  “[I]n the unique circumstances presented by the COVID-19 pandemic, holding a deposition by videoconference actually would provide a better opportunity for Plaintiffs’ counsel to observe the demeanor of the witness.”  Id.

Perhaps if the context surrounding COVID-19 were different, and there was an end in sight to the pandemic, the court would have been more amenable to the plaintiffs’ concerns, or perhaps not, given the number of extensions already granted.  Ultimately, it is hard to predict exigencies, but a few impressions are clear from reading Rouviere:  attorneys should meet discovery deadlines, avoid making excuses for why deadlines cannot be met, and be prepared to live with remote depositions for the foreseeable future.