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Conducting Discovery During the Pandemic (and Beyond) - Litigation News

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Litigation News


Posted on: Apr 3, 2020

A Message from United States District Court for the Southern District of Indiana Magistrate Judge Debra McVicker Lynch.1

 The outbreak of Coronavirus Disease 2019 (COVID-19) in the United States has resulted in declaration of a national emergency, and the C.D.C., state officials, and public health authorities have issued orders or guidance regarding “social distancing” to protect public health and safety.  Travel has also been significantly affected.

In civil litigation, much of the pretrial work by parties and the court is routinely conducted remotely without the participants’ physical nearness to anyone else—no one need be in the same room or building as anyone else.  The current health crisis has, of course, made remote work a necessity rather than a convenience, and though it creates frustration and difficulty at times, lawyers report to me that they are still working on their cases.  Recently, though, the court has received many motions seeking extensions of case management deadlines, often based on a perceived inability to conduct depositions consistent with COVID-19 social distancing measures and limitations on travel.

The purpose of this communication is to highlight the flexibility within the Federal Rules of Civil Procedure that may allow depositions to go forward during these difficult times.  Though that goal is not at the top of our lists of concerns right now, it’s important to keep in mind that delay in conducting depositions often leads to delays in engaging in meaningful settlement negotiations, briefing and decision on dispositive motions, and trial.  And though prolonged litigation is never a good thing for your business or individual clients, it is especially undesirable now.

Depositions have been conducted via teleconferencing technology for years, whether by telephone only or with audio/video feed technology.  While typically those arrangements have placed the officer administering the oath, the deponent, and deponent’s counsel all in the same room, that typical physical arrangement is not indispensable, and counsel should not reflexively assume that it’s the only way to do a deposition.  Various technology is available to place the participants in the same room virtually, and the Federal Rules of Civil Procedure provide authority for the parties and the court to adopt methods and procedures to conduct depositions consistent with physical distancing and/or complete separation of all participants.  To highlight:  (1) Rule 30(b)(4) allows the parties to agree, or the court to order, that a deposition be taken by telephone or other remote means; (2) Rule 28(a) permits the court where the action is pending to appoint an officer to administer the oath if there is any concern about whether a particular officer has that authority under the law of the place of examination, i.e.,  the place where the deponent is physically located; (3) Rule 29(a) allows the parties to stipulate, unless otherwise ordered, to take a deposition “before any person, at any time or place, on any notice, and in the manner specified”; and (4) Rule 26(c) allows the court to issue a protective order to specify terms for discovery.  And, most importantly, Rule 1 directs the court and the parties to construe, administer, and employ the Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action and proceeding.”

I encourage litigants and counsel to consider using available technology and the Rules’ flexibility to conduct depositions and to prepare their cases for settlement and for decision. Now is the time for us to think differently about our usual approaches to depositions and to adapt. The interests of the parties and the court—and thus, the interests of justice—are served if depositions can take place in a manner that protects the health and safety of all participants through necessary social distancing and that permits litigants’ disputes to be resolved in a timely and efficient way.

Reporting services are available that allow the taking of depositions on a wholly remote basis for all participants. For example, some reporting services use advanced Zoom technology, permitting audio/video real-time participation, with the court reporter (serving as oath-administering and reporting officer under Rules 28, 30, and 32), deponent, deponent’s counsel, and questioning counsel all participating at physical locations separate from each other. This technology also permits the use of deposition exhibits in familiar ways, i.e., permitting the sharing of exhibits as they are presented to the witness.  Exhibits can, of course, also be provided in advance of a deposition to the witness, court reporter, and all participating counsel. A transcript of testimony and a compilation of exhibits are created, certified, and made available by the court reporter/officer under usual practices and consistent with the duties prescribed under the Rules, specifically Rule 30(f).

Planning ahead always has been key to a successful deposition, and a deposition to be taken remotely requires more advance planning.  At minimum, the parties should address:
  • Selection of a court-reporting service that offers the required technology
  • Investigation of the technology that each participant must have to participate such as (a) computer laptop or desktop with a camera, (b) access to reliable WiFi, and (c) prior download of necessary software
  • Agreement that the court-reporting service’s agent can serve as the officer to administer the oath and record testimony or, in the absence of agreement, a request that the court appoint the court-reporting service’s agent as the officer authorized to administer the oath and record testimony
  • Agreement on logistics for the exchange of deposition exhibits either before the deposition or during the deposition, including agreement on email or fax transmissions during a deposition if they otherwise are not sharable in real-time via the platform used for remote participation
  • Agreement on a system for pre-marking deposition exhibits
  • Agreement on logistics for the deponent and her counsel to confer, if appropriate, during breaks
  • Agreement on the physical location of the deponent and ensuring the deponent’s access to and familiarity of use with the technology.  The deponent may, for example, be located at her counsel’s offices in a separate room from counsel (to achieve social distancing) and her counsel would ensure the deponent has access to a computer and reliable WiFi
Counsel should begin conferring to reach agreement about procedures for the depositions in their cases and strive to stipulate to the time, place, form of notice, and manner for conducting each deposition, as allowed under Rule 29(a). As always, our magistrate judges are prepared to address these matters with the parties if they can’t agree. 

1  I thank Mary Doherty for her assistance in preparing this message.

 

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