In March 2020, the New York State Courts and attorneys’ offices all over the state shut down as part of the public’s broad effort to slow the spread of the Coronavirus, and the legal profession quickly transitioned to remote operations. Remote team meetings, court appearances, arbitration hearings, networking events, and depositions were all borne from the necessity imposed by closed offices and social distancing.
Despite the sometimes steep learning curve associated with the remote conferencing technology and systems, remote proceedings became surprisingly effective. Lawyers who once swore that there was nothing like being in the same room as their adversary found that, in many cases, the Zoom or Teams suite works just fine. As a consequence, one need not look beyond the pages of this blog to see that for many, remote practices are here to stay. Commercial Division Rule 1 now allows attorneys to request to appear remotely, saving client costs and avoiding the unnecessary risk of infection. In February, we wrote about the Commercial Division Advisory Committee’s proposed rule authorizing and regulating the use of remote depositions. The proposed rule has received favorable comment.
While earlier stages of the pandemic brought near unanimous agreement that depositions would be conducted remotely, attorneys anxious to get back to in-person business have since begun to insist on in-person depositions. Vaccinated participants, the availability of conference rooms large enough to accommodate most social distancing guidelines, and required testing of all mean that it’s time to bid farewell to remote depositions and get back in the boardroom, these attorneys insist.
And of course there remains a sizeable group of lawyers and clients reluctant to dive back into the old practice of in-person depositions. These attorneys cite the delta variant, breakthrough cases, and travel concerns, all combined with the reality that the technology and remote depositions systems have advanced to the point where remote depositions are equally as effective as (and cheaper than) their in-person counterparts.
When disputes arise regarding remote vs. in-person depositions, most Courts fall into the latter group, even despite the waning pandemic. In April, New York County Justice George Silver denied a party’s request to hold an in-person deposition in light of the risks of COVID-19:
Since the outset of the coronavirus pandemic, the overwhelming majority of depositions have been conducted remotely. This practice sharply diverges from past practice where depositions were largely conducted in-person. Indeed, in light of present circumstances, the general rule that depositions be conducted in-person has had to yield to practical public health considerations. Fortunately, this court has the authority to address those concerns, in part, by ordering that depositions be conducted remotely. To be sure, under CPLR §3103(a), a court has the discretionary power to compel a remote deposition over a party’s objection.
In June, New York County Justice Lisa Headley announced her rule that unless all parties agree to an in-person deposition, all depositions shall be remote:
In the past year, due to the health concerns of Covid-19, this Court has followed and encouraged safety protocols and recommendations of conducting remote conferencing, which has proven to be highly successful. In light of such, if remote conferencing is a preferred mechanism for one or either party due to safety concerns, all counsel shall proceed with the depositions in such manner.
Even more recently, other New York courts have either expressly ordered remote depositions or stated that depositions were subject to the same rule that Justice Headley announced: unless the parties all agree otherwise, depositions are to be conducted remotely. For example:
- Certani v Lee, [Sup Ct, NY County Sept. 24 2021]: “ORDERED that depositions shall be conducted remotely, unless all parties stipulate otherwise, provided that attorneys may be in same room as their clients during their client’s deposition.”
- Levy v Kerr, [Sup Ct, NY County Sept. 14 2021]: “The motion is granted to the extent that, (a) on or before November 10, 2021, the defendants shall produce and provide the plaintiff with all of their office records, billing records, and radiology reports referable to her, as well as a copy of Patrick Kerr’s curriculum vitae, and shall fully respond to the plaintiff’s June 25, 2020 combined demands and demand for a verified bill of particulars as to affirmative defenses and (b) on or before December 8, 2021, the defendants shall submit to depositions, to be conducted remotely.”
- Guerra v The New York City Housing Authority, [Sup Ct, Kings County Aug. 4 2021]: “ORDERED that NYCHA shall produce Ronald Choelwa for deposition no later than 90 days from service of this order with notice of entry, and, upon the request of any party, the deposition shall be conducted remotely using videoconference technology.
While there may be cases with unique circumstances requiring an in-person deposition, the cases above suggest that absent unique and compelling circumstances, courts are likely to reject requests for in-person depositions based solely on a party or counsel’s general preference for in-person proceedings.
It will be years before we fully appreciate the impact of the Coronavirus Pandemic on the legal profession. But for now, unless all parties agree otherwise, remote depositions remain the new normal.