Remote depositions have long served an important purpose. In the pre-pandemic era, for example, they allowed us to depose witnesses in distant locations without the need for travel. But it was during the pandemic that remote depositions became something we could not live without. Our cases did not come to a complete standstill; discovery proceeded as many lawyers embarked on a crash course in litigation via advanced technology. I, like many others, came to realize that remote depositions can be accomplished even in more complicated circumstances involving multiple lawyers and many exhibits.
The New York Commercial Division Rules were recently amended to reflect the reality that remote depositions are now a permanent part of the litigation landscape. Rule 37, which quietly took effect on December 15, 2021 as the holidays approached and the omicron surge took hold, sets out the parameters for remote depositions in commercial cases.
The rule states that the court may, upon the consent of the parties or a showing of good cause, order that depositions take place remotely. Factors relevant to a showing of good cause include but are not limited to:
- The safety of the parties and the witness, including whether they and counsel can safely convene in a single location, which shall be given priority over all other considerations;
- The distance between the parties and the witness and the time and costs associated with travel to an in-person deposition location;
- Whether the witness is a party to the litigation; and
- The likely importance of the witness’ testimony to the case.
Sub-section (c) of the rule encourages parties to adopt a form setting forth protocol for the conduct of remote depositions that is annexed as Appendix G. These protocols are designed to ensure that parties meet the rule’s requirement that remote depositions replicate in-person depositions to the extent practical and eliminate prejudice to the parties. They include but are not limited to the following provisions:
- All participants must be clearly visible, their statements must be audible, and each should use best efforts to eliminate noise and distraction.
- Counsel shall not communicate privately with the deponent during the deposition, including through electronic means. If counsel needs to consult with the witness to determine whether privilege should be asserted, he or she may do so only after the witness states on the record that he or she needs to consult with counsel for that purpose.
- The parties shall specify a protocol for sharing and viewing exhibits.
Rule 37 also provides that the parties shall not mount a challenge based on the fact that the court reporter and the witness are in different locations, or because the court reporter is not authorized to administer an oath in the state where the deponent resides. Additionally, it states that an attorney’s failure, as the result of technical difficulties, to make objections or give instructions not to answer shall not be deemed a waiver so long as remedied as soon as practicable.
In the end, whether or not you are a fan of remote depositions, it is important to become familiar with Rule 37 if you practice in the Commercial Division. It is not merely an emergency rule that will expire in the future when the pandemic is behind us. It is the first iteration of a rule that governs a newer method for conducting discovery, which will become increasingly common as more tech-saavy lawyers take up the mantle as lead counsel in commercial matters.
If you have any questions about remote depositions, please contact Jessica Baquet at firstname.lastname@example.org.