The widespread use of remote depositions during the COVID-19 pandemic demonstrated to the legal community that the technology can be used to effectively resolve disputes remotely. As social distancing measures are lifted, many attorneys are now facing a critical question: should remote depositions be the standard when their usage will save clients time and money? In this article, we’ll take a closer look at this exact question, and at the New York courts that are trying to answer it.
Let’s get started!
Theory Meets Practice
Most attorneys would agree that remote depositions are more cost-effective than their traditional counterparts, however, some still face pushback from litigators who may be uncomfortable with the technology. At the moment, attorneys who find themselves faced with such opposing counsel have very little recourse. Fortunately, a proposed rule in New York’s business courts could offer a lifeline!
The New York Supreme Court Commercial Division is a group of specialized trial courts with jurisdiction to decide high-value business disputes. For that reason, you might expect that litigants would balk at virtual proceedings due to the sum of money in balance. In fact, judicial officials have proposed a rule that would allow trial judges to order remote depositions over a party’s objection, provided that “undue hardship” could be shown. Some of the conditions that would constitute undue hardship include:
- 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
- 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
- Whether the witness is a party to the litigation; and
- The likely importance or significance of the testimony of the witness to the claims and defenses at issue in the litigation.
As you can see, this rule would allow the court to consider factors such as the relative cost of a remote deposition versus a traditional deposition before rendering a decision.
Foundation with Modern & Historical Support
New York’s proposed rule is not unique in its willingness to evaluate cost before determining how a case should proceed. In fact, cost-considerations are already part of the federal rules surrounding pre-trial discovery. According to Federal Rule of Civil Procedure 26, information is only discoverable if it’s relevant, unprotected by privilege, and proportionate to the needs of the case. While cost is not explicitly mentioned as a factor of discoverability, it falls under the category of proportionality. To make a determination of proportionality, we must consider whether the burden and expense of discovery outweigh the potential benefits.
In addition to its strong foundational basis, the proposed rule also generated support from The New York State Bar Association’s Commercial and Federal Litigation Section. The group recently filed comments in support of the proposed changes, stating succinctly:
“The cost and time savings due to decreased travel by witnesses and counsel and efficiencies in presenting exhibits more than makes up for any increased cost due to video recording of the deposition, especially in complex, commercial litigation where depositions recorded on video media have often been used.”
Thanks for reading! We hope we’ve been able to give you a glimpse into how cost-considerations can impact the use of remote depositions. If you enjoyed this article, feel free to share it on social media!
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