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V.M., Plaintiff, v. M.M., Defendant.
This matter is before the court on Plaintiff's application to hold remote depositions of the parties and Defendant's application to have all depositions conducted in-person. After a telephone conference with counsel and the court on January 20, 2022, counsel were directed to submit a letter application setting forth their respective provisions. The court received two letters, both dated January 21, 2022, from Louisa DeRose, Esq., Plaintiff's attorney, and Mary Grace Condello, Esq., Defendant's attorney.
NOW, UPON consideration of both letters dated January 21, 2022 and all prior proceedings in this matrimonial action, the Court orders the following:
Plaintiff served a deposition notice on December 7, 2021, requiring Defendant to sit for a deposition at Plaintiff's counsel's office. Plaintiff's counsel, Ms. DeRose, alleges that on December 22, 2021, counsel subsequently agreed that depositions would be conducted virtually and on January 5, 2022, counsel agreed upon deposition dates. On January 12, 2022, Defendant's counsel, Ms. Condello, notified Ms. DeRose by email that depositions should be conducted in-person.
Plaintiff objects to in-person depositions for several reasons. First, Plaintiff argues that in-person depositions would require “five people being forced to sit together for hours in the confines of a closed conference room” and that such “is an unnecessary risk to the health and safety of all concerned given the spread of Omicron, especially when there is an otherwise acceptable alternative.” Second, Plaintiff is hearing impaired which requires her to use hearing aids and read lips. These limitations, she submits, would interfere with Plaintiff's ability to understand the questions posed since an in-person meeting would require all present to wear face masks.
On the other hand, Defendant argues that it would be prejudicial to him if depositions were conducted virtually. Ms. Condello concedes that she initially requested that depositions be held remotely because she did not want to travel to New York County for a Kings County case. However, after reading the forensic evaluation report, Defendant is concerned that Plaintiff's mother will be present in the room assisting her with answering questions at the deposition. This belief is based upon Defendant's review of the forensic evaluation report which purportedly states that Plaintiff's mother was present during the psychological testing and assisted Plaintiff in completing the questionnaire.
Plaintiff's counsel responds that she can assure the court and Defendant that Plaintiff's mother will not be present if a virtual deposition is held. For further assurance, Ms. DeRose suggests that Plaintiff may “drive to our firm's offices, where almost all personnel are working remotely [the firm has] three large conference rooms with windows that can be opened for fresh airflow where [Plaintiff] would be able to be deposed in a room separated from, or truly distanced from, others.” Defendant's counsel claims that “[t]his is an oxymoron because if you claim COVID and are alleging that the Plaintiff has elderly parents, [why] is it appropriate for the Plaintiff to go to her attorney's office when [Defendant's counsel's] office is right in her neighborhood?”
The CPLR contemplates that depositions will be held in person and remote depositions may be held upon stipulation of the parties (CPLR 3113 [d]). Notwithstanding the provisions of CPLR 3113, there is no bright-line rule that precludes a court from requiring the parties to conduct remote depositions over the objection of one party. “The court may at any time on its own initiative, or on motion of any party make a protective order denying, limiting, conditioning or regulating the use of any disclosure device” (CPLR 3103 [a]). When a court is called upon to determine whether remote depositions shall be held in lieu of in-person depositions, the standard to be applied is whether a party demonstrates that conducting his or her deposition in-person would cause undue hardship (see Yu Hui Chen v Chen Li Zhi, 81 AD3d 818, 818 [2d Dept 2011]).
Since the onset of the COVID-19 pandemic, courts have repeatedly held that the dangers posed by the pandemic constitute an undue hardship such that remote depositions are proper (see Rodriguez v Montefiore Med Ctr., 70 Misc 3d 991 [Sup Ct, Bronx County, Dec. 23, 2020]; Bynes v New York City Health and Hosps. Corp., 2020 NY Slip Op 34422[U] [Sup Ct, Bronx County Sept. 17, 2020]; Fields v MTA Bus Co., 69 Misc 3d 632 [Sup Ct, Westchester County, Aug. 17, 2020]; Chase-Morris v Tubby, 69 Misc 3d 349 [Sup Ct, Westchester County, Aug. 3, 2020]).
Here, there is no doubt that the COVID-19 pandemic has caused disruption to many face-to-face proceedings and required attorneys, litigants, and the courts to utilize technology in more ways than ever contemplated; so much so that virtual proceedings and electronic discovery appear to be the new normal and in-person meetings a rarity. Based upon the previously cited cases, and numerous other courts, it is hard for a litigant to argue that the pandemic no longer causes an undue hardship so as to require in-person depositions (see e.g. Bynes, 2020 NY Slip Op 34422[U] at 3 [finding it “undeniable that forcing a party to appear for an in-person deposition would create an undue hardship considering the circumstances surrounding the ongoing pandemic”]; Rouviere v DePuy Orthopaedics, Inc., 471 F Supp 3d 571, 575 [SDNY 2020] [finding that holding a deposition in a room with a witness, counsel and a stenographer present would place everyone in the room at risk; thus, remote depositions ordered in the absence of countervailing prejudice]). Plaintiff's concerns regarding the rise in the Omicron variant and transmission are credible and undeniable. To safely conduct an in-person deposition would require sufficient social distancing and the parties and all others present would have to wear masks. The use of masks would result in prejudice to Plaintiff as she requires, as an accommodation, that she be able to read the lips of the deposing counsel to fully understand the questions posed due to her hearing impairment.
To this day, the Administrative Order of the Chief Administrative Judge of the Courts dated June 22, 2020, remains in effect and states, “[i]n light of the ongoing coronavirus public health emergency, counsel and litigants are strongly encouraged to pursue discovery in cooperative fashion and to employ remote technology in discovery whenever possible” (AO/129/20, available at https://www.nycourts.gov/whatsnew/pdf/AO-129-20.pdf [last accessed Jan. 23, 2022]). Considering the spirit of the directive from the Chief Administrative Judge of the Courts, and the caselaw propounded by New York State trial courts, together with the status of the coronavirus pandemic and Plaintiff's request for an accommodation that she be able to read lips to assist her with understanding the questions, the court finds that Plaintiff has demonstrated an undue hardship requiring depositions in this action to proceed by remote means.
The prejudice asserted by Defendant, namely that Plaintiff's mother may assist during the deposition, does not outweigh the prejudice and hardship enumerated by Plaintiff. Any risk that Plaintiff's mother will taint the deposition is easily remedied by establishing certain safeguards to avoid any inappropriate consultation during Plaintiff's remote deposition. To that end, no individual, other than a court reporter and/or deponent's counsel, may be physically present in the same room as the deponent during his or her deposition. Plaintiff shall appear at the offices of Rower LLC for her deposition.
The deponent shall not communicate with anyone in any manner during his or her deposition except for his or her own counsel, the deposing counsel, or the court reporter. Any communication between the deponent and his or her counsel shall be limited to subjects permitted by court rule, statute, or applicable caselaw. No counsel shall privately communicate with any deponent during questioning on the record, except for the purpose of determining whether a privilege should be asserted, and only after the witness has stated on the record that he or she needs to consult counsel regarding a question of privilege.
Deponents shall shut off electronic devices, other than the devices that the deponent is using for the videoconferencing software and to display and access the exhibits, and shall refrain from all private communication during questioning on the record. Counsel shall use best efforts to ensure that they have sufficient technology to participate in a videoconference deposition (e.g., a webcam and computer or telephone audio and sufficient internet bandwidth to sustain the remote deposition). Counsel for the deponent shall likewise use best efforts to ensure that the deponent has such sufficient technology. At all times during the deposition, the deponent, his or her counsel, and all other parties present must be visible on screen. Counsel shall confer in good faith prior to the depositions to establish procedural and logistical rules for the remote depositions.
In accordance with the foregoing, it is hereby
ORDERED that depositions of both parties shall be conducted remotely by videoconference or comparable electronic means; and it is further
ORDERED that all parties shall adhere to the rules stated herein for the remote deposition. The parties may modify or establish further rules for conduct during the deposition by written stipulation.
Plaintiff shall serve a copy of this order, within notice of entry, upon Defendant within three (3) days of such entry and e-file an affidavit of said service to the NYSCEF system.
This constitutes the order of the court.
Joanne D. Quiñones, J.
Response sent, thank you
Docket No: Index No. XXXXX
Decided: January 24, 2022
Court: Supreme Court, Kings County, New York.
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