BUSH v. ALLIANT CONTENT LLC (2022)

In this employment discrimination action, pursuant to the Court's directive, the parties have submitted contemporaneous letters in support of their applications regarding conducting the plaintiff's deposition; now

In consideration of plaintiff's application that the deposition of plaintiff be taken remotely, which is opposed by defendants; and

In consideration of defendants’ application for an additional three hours (total of ten hours) to take plaintiff's deposition, which is opposed by plaintiff, the Court rules as follows:

In-person/Remote Deposition

Plaintiff contends that she is at high risk for COVID-19 because she is not vaccinated and a recent cancer survivor. In support, plaintiff submits a letter from her treating endocrinologist, Yelena Zubatov, M.D., which states that plaintiff is under her care for hypothyroidism due to total thyroidectomy for thyroid cancer treatment, and that plaintiff has not received the COVID-19 vaccine making her at increased risk for COVID-19 infection. Plaintiff states that she works in a full-time position on location on a flexible hybrid basis. The majority of plaintiff's time is spent in the office, which is a very controlled, isolated setting, and she has a separate, enclosed office. Plaintiff asserts that she coordinates her schedule to work from home whenever there are a number of visitors expected in the office.

Plaintiff's counsel also asserts that his partner is at high risk for COVID-19 due to his age, and that his law firm has struggled with repeated staff shortages due to numerous COVID-19 infections over the past two years.

In opposition, defendant contends that an in-person deposition is necessary in this case due to the large volume of evidence to be examined, including significant e-discovery; and notes that plaintiff maintains an active and in-person lifestyle including that she attends a job in-person regularly. Defendant also asserts that all attendees can obtain a PCR test within 48 hours of the deposition, and that social distancing and mask wearing by non-speaking attendees can be implemented. Defense counsel has also advised that the only attendees at the deposition, excluding plaintiff and her counsel, will be himself (defendants’ counsel), defendant Thomas Lucas, defendant Chelsea Lauzun, and a court reporter.

Length of Deposition

Defendants request an additional three hours in addition to the seven hours permitted by 202.20-b(a)(2) and (f) of the Uniform Rules of the Supreme Court. They claim good cause exists as there is extensive documentary discovery and about ten hours of secret recordings made by plaintiff. Defendant argues they would be prejudiced if they could not adequately and fairly depose plaintiff on her extensive claims.

In opposition, plaintiff argues that defendants have not shown good cause to extend plaintiff's deposition time, as good cause is not shown by the amount of documents in a case, and that defendants seek to depose plaintiff on her past and extracurricular activities and stressors that do not relate to the issues in dispute. Plaintiff further asserts that most of the recording time is irrelevant, and that defendant can identify the portions necessary to the plaintiff's claims and their defenses prior to the deposition.

Discussion

Notwithstanding CPLR 3113(d), which contemplates that depositions will be held in person and remote depositions may be held upon stipulation of the parties, there is no bright-line rule that precludes a court from requiring the parties to conduct remote depositions over the objection of one party (V.M. v. M.M., 2022 WL 260508, *2, 2022 N.Y. Misc. LEXIS 308, *3-4 [Sup. Ct., Kings County 2022]). he 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 (V.M. v. M.M., 2022 WL 260508, *1-2 2022 N.Y. Misc. LEXIS 308, *4 [Sup. Ct., Kings County 2022] citing Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 818, 916 N.Y.S.2d 525 [2d Dept. 2011]).

It has been held by courts that forcing a party to appear for an in-person deposition would create an undue hardship considering the circumstances surrounding the ongoing pandemic (Bynes v. New York City Health & Hosps. Corp., 2020 WL 6380601, *1 2020 N.Y. Misc. LEXIS 11380, *3 [Sup. Ct., Bronx County 2020]). However, as time progresses, we have learned ways to protect ourselves and others to prevent the spread of COVID-19 and can take measures to put protections in place so as to conduct in person proceedings, including depositions. Here, plaintiff claims undue hardship due to her being unvaccinated and a recent cancer survivor. Nevertheless, protections can be put into place, as it appears the plaintiff has at her current in person job; thus, under the circumstances here, undue hardship has not been established.

Plaintiff's Deposition

Protections must be put in place to conduct plaintiff's deposition in person. This shall include a large enough conference room so that each individual is spaced at least three feet apart. The plaintiff must be partitioned with glass or plastic partitions so that she is separated from defense counsel, her own counsel, court reporters and the two parties present. Plaintiff's counsel must also be partitioned off completely from all other individuals present for the deposition, as does any other individual present who desires to be partitioned. All individuals present, except the attorney questioning the witness and the plaintiff, must wear a mask at all times. Should plaintiff and/or plaintiff's counsel wish to have a private conversation with each other, all other individuals shall leave the conference room so that the conversation can be conducted in the conference room where the deposition is taking place ¹ .

Length of Deposition

The Uniform Rules of the Supreme Court limit the deposition of a party deponent to seven hours (see 22 NYCRR 202.20-b [a] [2]), unless the court permits a longer deposition “for good cause shown” (22 NYCRR 202.20-b [f]). The decision whether or not to enlarge the amount of time for examination of a deponent is a factual decision, depending on the circumstances of the individual case (Carmody v. Vill. of Rockville Ctr., 2007 WL 2177064, *3, 2007 U.S. Dist. LEXIS 54736, *8-9 [S.D.N.Y. July 27, 2007]).

It is undisputed that there is voluminous document and electronic discovery, including voluminous exchanges within an inter-office messaging system, as well as approximately ten hours of recordings, which defendants assert will need to be examined at plaintiff's deposition. However, this is not unusual and does not amount to good cause shown as defendants’ counsel can go through all document and recorded discovery in advance of the deposition to identify exactly what needs to be presented to the plaintiff during her deposition.

Accordingly, it is hereby

ORDERED that plaintiff's deposition be conducted in-person with the protections in place as detailed above; and it is further

ORDERED that the time limit for plaintiff's deposition is limited to seven (7) hours.

The parties are reminded, as per the June 21, 2022 Compliance Conference Order, that plaintiff's deposition shall be conducted on or before July 27, 2022.

FOOTNOTES

1.   It is encouraged that the individuals attending also take a PCR and/or at home Covid test prior to the deposition.

William J. Giacomo, J.