RUBIN v. SABHARWAL OM LLC OM LLC (2021)

In this breach of contract and fraud action, plaintiff moves under CPLR 3101 for a protective order precluding defendants from taking her in-person deposition, and to compel defendants to conduct her deposition by remote video conferencing. The motion is granted.

Background

Plaintiff is a 77-year-old woman who states that she is currently domiciled in the State of Florida (NYSCEF Doc. No. 99; plaintiff's affidavit at 2, ¶ 5). Plaintiff argues that defendants' demand for her in-person deposition in New York State is inappropriate and irresponsible given the ongoing coronavirus pandemic. Plaintiff alleges that travel restrictions, quarantine requirements, and her personal circumstances of being the primary caregiver to her ill husband render an in-person deposition an undue burden on her, warranting a protective order (id. at 2, ¶ 7-8).

In opposition, counsel for defendants alleges that during prior, unrelated remote depositions, he personally observed deponents glancing off-camera and appearing to either take notes or cues from another person in the room that was not visible on the web camera. Defendants further argue that plaintiff's long history of delaying and avoiding her deposition has put her in the current position.

Discussion

The provisions of the CPLR governing depositions are founded on the assumption that depositions will be conducted in person (see CPLR 3110, 3113). Absent a stipulation between the parties to conduct a deposition remotely, a party seeking the remote deposition must demonstrate that the party would encounter undue hardship from submitting to an in-person deposition in New York State (Rogovin v Rogovin, 3 AD3d 352, [1st Dept, 2004]). Since the onset of the coronavirus pandemic, the courts have repeatedly concluded that the personal and public-health dangers posed by the coronavirus pandemic present an undue hardship (See Bynes v New York City Health & Hosps. Corp., 2020 NY Slip Op 34422(U) [Sup Ct., NY County]). Recent administrative orders issued by the Chief Administrative Judge thus strongly encourage parties to civil suits to conduct matters by remote platforms (Administrative Order 129/20 [June 22, 2020]).

This court concludes that plaintiff has demonstrated that given the risks from COVID and her care obligations to her husband, requiring her to appear in person would cause her undue hardship, warranting a remote deposition (see NYSCEF Doc. No. 99, plaintiff's affidavit at 2, ¶ 5-8). And current videoconferencing technology affords counsel a reasonable and sufficient opportunity to observe the deponent and assess the credibility of her responses (Rodriguez v Montefiore Med Ctr., 2020 WL 7689633; 2020 NY Slip Op 20349 [Sup Ct, Bronx County 2020]).

The court further concludes that defendants have not sufficiently demonstrated that a risk exists that plaintiff will inappropriately consult with others during her deposition to require an in-person deposition, given the safeguards set out in the decretal paragraph below.

Accordingly, it is hereby

ORDERED that plaintiff's motion for a protective order under CPLR 3013 is granted; and it is further

ORDERED that defendants shall take plaintiff's deposition remotely by videoconference or comparable means on or before April 2, 2021, unless the parties stipulate to adjourn the deposition beyond that date; and it is further

ORDERED that the parties will appear before this court for a telephonic status conference on April 9, 2021; and it is further

ORDERED that the following rules will govern the remote deposition:

(1) no individual may be physically present in the same room as the deponent during her deposition other than the court reporter or deponent's counsel; (2) the deponent may not communicate with anyone in any manner during her deposition except for her counsel, defendants' counsel, or the court reporter; (3) the deponent's counsel's communications with the deponent during her deposition are to be limited to subjects appropriate under 22 NYCRR Part 221; (4) prior to initiating any private communication with the deponent during her deposition, the deponent's counsel must first announce his intention to do so; and (5) at all times during her deposition, the deponent and her counsel must both be visible on screen (whether together in the same room or in separate physical locations).

The parties may modify these rules by e-filed stipulation, if they so choose.

Gerald Lebovits, J.