A Closer Look at the New Rule Permitting Remote Depositions

Lawyers everywhere (and their clients) have adapted to various court processes proceeding remotely during the pandemic. The ability to use technology has kept the court system functioning and the legal system afloat during a trying few years. Moving forward, remote technology will become more commonplace and has already been adapted by courts in various jurisdictions for a wide variety of purposes.  Clients may wonder how this will affect their representation. At Einbinder & Dunn we have a national practice, and so have readily adopted remote technology to serve our clients’ needs over the years. As the courts nationwide start to embrace technology, our clients stand to benefit from these time and cost-saving measures. One area where remote technology has been used with increasing regularity is during depositions.

A deposition is an interview, outside of a courtroom, that occurs under oath in advance of a trial. If you or your business are involved in litigation, the attorney for the opposing party may depose you. This process is part of discovery, which is when the parties to litigation provide each other with documents and other information that will assist with claims or defenses at trial.

Commercial Division Courts in New York State have begun to allow for remote depositions in certain cases. Under the Commercial Division Rules, this is addressed under Rule 37. Rule 37 took effect on Dec. 15, 2021. This Rule took effect shortly after Rule 36, which allows for remote evidentiary hearings and bench trials. Under Rule 37, remote depositions are made permissible by either consent or on a showing of good cause.

This means, in a business dispute, if you and the other side agree, depositions can be conducted remotely. This may save the attorney time and will save you from having to travel for a deposition. If you and the other side do not agree on whether to conduct depositions remotely, then the party seeking a remote deposition must ask the Court for permission by filing a motion. If the Court finds that there is ‘good cause,’ it will grant the motion.

What Constitutes “Good Cause?”

Rule 37 gives a non-exhaustive list of considerations given to motions in showing of “good cause:”

  • The distance between the parties and the witness – weighing time and travel costs for counsel, litigants, and witness to reach the deposition location;
  • The safety of the parties and the witness, and whether they can safely convene in one location for the deposition;
  • Whether the witness is a party to the litigation; and
  • The anticipated significance of the witness’s testimony.

Note that the safety of the parties is given priority over all other criteria. This is more relevant than ever during the COVID-19 pandemic and possible future pandemics or endemics.

What Are the Potential Downsides of Rule 37?

Aside from the obvious concerns about technical difficulties, perhaps the most glaring potential problem that could arise from remote depositions is one of integrity. Specifically, the inability to monitor witnesses’ surroundings, off-screen activity, or other applications/functions open on their computer during questioning makes the entire process susceptible to manipulation by unscrupulous parties. For example, although the protocols in Appendix G of Rule 37 explicitly forbid counsel from communicating with a deponent during questioning, in practice it would be very hard to police against counsel messaging witnesses through the computer on some other chat medium. Alternatively, witnesses could receive off-screen coaching from somebody in the room with them, undetected by the individuals in the videoconference (some critics of the new rule advocate for providing witnesses with 360-degree cameras to prevent this). A witness might also feign technical difficulties when faced with difficult questions.

What Are the Advantages of Rule 37?

The advantages of Rule 37 are, in large part, the same advantages to remote work universally: Reduced time (and, thus, costs of taking depositions) which can lead to greater ease in scheduling, convenience of the parties, and greater safety for those involved. It allows attorneys and clients to work in a place that is comfortable. At Einbinder & Dunn we have conducted and defended remote depositions during the pandemic. In general, the experience was a great advantage to our clients: We were able to save on attorney travel (and thus, significantly reduce client expenses), conduct multiple depositions of witnesses in a day (when, for example, witnesses are located in different states), and, in general, made scheduling depositions less complicated. As remote practice becomes commonplace, we expect our experience to only make the process easier for our clients.

For reference: Rule 37, in its entirety:

(a) The court may, upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means, subject to the limitations of this Rule.

(b) Considerations upon such a motion, and in support of a showing of good cause, shall include but not be limited to:

(1) The distance between the parties and the witness, including time and costs of travel by counsel and litigants and the witness to the proposed location for the deposition; and

(2) The safety of the parties and the witness, including whether counsel and litigants and the witness may safely convene in one location for the deposition; and

(3) Whether the witness is a party to the litigation; and

(4) The likely importance or significance of the testimony of the witness to the claims and defenses at issue in the litigation. For the avoidance of doubt, the safety of the parties and the witness shall take priority over all other criteria.

(c) Remote depositions shall replicate, insofar as practical, in-person depositions, and parties should endeavor to eliminate any potential for prejudice that may arise as a result of the remote format of the deposition. To that end, parties are encouraged to utilize the form protocol for remote deposition, which is reproduced as Appendix G to these rules, as a basis for reaching the parties’ agreed protocol.

(d) No party shall challenge the validity of any oath or affirmation administered during a remote deposition on the grounds that

(1) the court reporter or officer is or might not be a notary public in the state where the witness is located; or

(2) the court reporter or officer might not be physically present with the witness during the examination.

(e) Witnesses and defending attorneys shall have the right to review exhibits at the deposition independently to the same degree as if they were given paper copies.

(f) No waiver shall be inferred as to any testimony if the defending attorney was prohibited by technical problems from interposing a timely objection or instruction not to answer.

(g) Nothing in this rule is intended to: (i) address whether a remote witness is deemed “unavailable,” within the meaning of CPLR 3117 and its interpretive case law, for the purposes of utilizing that witness’ deposition at trial: or (ii) alter the Court’s authority to compel testimony of non-party witnesses in accordance with New York la

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