FAFORD II v. GRAND TRUNK WESTERN RAILROAD COMPANY (2020)

ORDER DENYING MOTION FOR PROTECTIVE ORDER

In this Federal Employer's Liability Act (FELA) case, the parties have been bickering over how to complete their discovery amid the no-contact restrictions that have been put in place to limit the spread of the novel coronavirus and the COVID-19 infections it causes. Originally, discovery was to have been completed by the end of last year. The Court extended the deadline at the parties' request to June 1, 2020, and again to August 3, 2020. On June 2, 2020, the defendant filed a motion for a protective order seeking to postpone the depositions of its employees until late August 2020, citing the COVID-19 restrictions in place. Drilling deeper, though, it turned out that defense counsel did not want to use any remote technological devices to consult with and prepare her witnesses or take or defend depositions except in person.

On June 3, 2020, the Court held a status conference (by phone) to discuss the motion. Defense counsel insisted that witnesses must be deposed in person and rejected the idea that conducting depositions using videoconference technology to maintain social distancing was acceptable. The Court expressed the view that the use of such technology not only was allowable under the applicable rules of procedure but it also was preferred, due to the safety demands of the pandemic. The Court encouraged the parties to cooperate with each other in developing a plan to depose witnesses and extended the discovery deadline once again, this time to September 4, 2020. It appeared for a while that the parties accepted the Court's admonitions. They agreed to take the plaintiff's deposition in mid-July and the depositions of four of the defendant's employees by the end of July.

The defendant has completed the plaintiff's deposition, and the defendant's witnesses are scheduled for July 29 and 30 to be deposed remotely via Zoom teleconferencing. On Monday, however, the defendant filed an “emergency” motion for a protective order to prevent those depositions from taking place. Defense counsel wants to put them off “until after restrictions relating to the COVID-19 pandemic are lifted and [defense counsel] can safely meet with the employees and prepare and defend these depositions in person.” Although this may seem like old wine in a new bottle, the railroad's lawyers point to an Executive Order recently issued by Michigan's governor, which, they say, impose more severe restrictions to combat a “second COVID-19 surge.” Allowing the depositions to go forward, they say, even using Zoom technology, would violate the latest Executive Order because “it [would] (1) require[ ] non-essential travel to an office with video conference capability and (2) make[ ] the deponent a prohibited non-essential visitor at that office.” The defendant's solution to this seemingly intractable problem is to take the depositions by written questions under Federal Rule of Civil Procedure 31.

The other “solution,” however, is to proceed with the depositions as scheduled with videoconference technology, and as the Court directed over a month ago, under Rule 30(b)(4) (noting that “a deposition be taken by telephone or other remote means”). That is a sensible, practical and legal “solution.” Nothing in Governor Whitmer's Executive Orders, guidelines issued by the Centers for Disease Control and Prevention (CDC), or the rules of civil procedure suggest otherwise. See Damron v. Liberty Mut. Ins. Co., No. 19-11497, 2020 WL 3071850, *1 (E.D. Mich. June 10, 2020).

Michigan relaxed its prohibition on nonessential employees from returning to work on July 9, 2020, allowing workplace attendance and essential business travel. See Executive Order No. 2020-145 (July 9??, 2020). It is true that more recently, Governor Whitmer noted the significant uptick in COVID-19 cases, stating that “Michigan now faces an acute risk of a second wave, one that not only threatens lives but may also jeopardize the reopening of schools in the fall. In response,” she declared, she “paused the reopening of our economy.” Executive Order No. 2020-151 (July 14, 2020) (emphasis added). The Governor emphasized that “large gatherings remain curtailed.” Ibid. And “consistent with the accumulating evidence that COVID-19 often spreads via aerosolized droplets, [she] adopted additional measures — including the closure of certain bars and a requirement that stores refuse entry and service to those without face coverings — to reduce the risk of spread in indoor spaces.” Ibid. The point of that Executive Order was not to impose another lockdown or announce a “second wave” of infections. Instead, it was to emphasize that individuals must take sensible precautions — like wearing masks and maintaining social distancing — when gathering. Conducting depositions would not violate the Executive Order, unless they become a “large gathering” or participants refuse to wear masks, which no one suggests is likely here.

Defense counsel's argument is based on a premise that the only acceptable way forward is to wait until things get back to normal and face-to-face deposition preparation and interrogation can resume. But the Court rejected that idea at the June 3 status conference and told the attorneys to adjust. Although most other lawyers have warmed to the idea of technology, defense counsel refuses to budge. They stand on soft ground. See Wilkens v. ValueHealth, LLC, No. 19-1193-EFM-KGG, 2020 WL 2496001, at *2 (D. Kan. May 14, 2020) (noting that “[v]ideo or teleconference depositions and preparation are the ‘new normal’ and most likely will be for some time”).

The defendant says its witnesses are not technologically literate and cannot get to a place where videoconference equipment is available, either for preparation with counsel or for the depositions. But Zoom conferences can be conducted from a smart phone, and defense counsel has not alleged that its witnesses do not enjoy even that basic feature of modern technology. See Riley v. California, 573 U.S. 373, 395, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (noting that “it is the person who is not carrying a cell phone, with all that it contains, who is the exception”; and that “[a]ccording to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower”) (citing Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013)). Defense counsel's hinting that her witnesses may not be available for a video deposition is not plausible. And there is no good reason in this case why preparation must take place in person.

Defense counsel also contends that traveling to a site for an in-person deposition so she can be in the presence of her witnesses will violate Governor Whitmer's lasts Executive Order and expose her to a misdemeanor violation. As noted above, that is simply not true. And that concern did not stop her from travelling to plaintiff counsel's office two weeks ago (after the latest Executive Order was issued) to be physically present during the plaintiff's deposition.

Despite defense counsel's conduct with the plaintiff, it is quite clear that in-person depositions can impose an unreasonable burden on witnesses, parties, and lawyers during this pandemic. Joffe v. King & Spalding, LLP, No. 17-3392, 2020 WL 3453452, at *8 (S.D.N.Y. June 24, 2020) (rejecting motion for reconsideration of order directing remote depositions and finding that “in-person depositions ․ would impose an undue burden during these extraordinary times”). In fact, depositions by videoconference have emerged as the preferred method of coping with the complications and perils this pandemic has wrought. See Damron v. Liberty Mut. Ins. Co., No. 19-11497, 2020 WL 3071850, *1 (E.D. Mich. June 10, 2020) (affirming magistrate judge's May 28 order denying a motion to stay discovery and directing the parties to continue a deposition by videoconference) (citing Fed. R. Civ. P. 30(b)(4)). That point, the Court believed, was settled at the June 3 status conference. The defendant has not cited any developments since then — in public health or law — that has altered that view.

Citing Rule 37(a)(5)(B), the plaintiff asks for costs for having to respond to this motion. That rule requires the imposition of costs when a protective order motion is denied unless “the motion was substantially justified or other circumstances make an award of expenses unjust.” The Court can see no justification for this motion or any circumstances justifying the expense plaintiff's counsel incurred by responding to this “emergency” motion. The defendant's stated reasons for its last-minute attempt to avoid the scheduled video depositions, which were set up by agreement weeks earlier, amount to nothing more than transparent posturing in an attempt to assert its tactical preferences, which were rejected by the Court weeks ago. But costs will not be awarded absent “an opportunity to be heard.” Ibid. The Court will allow both sides the opportunity to develop their arguments for costs.

In the meantime, however, the depositions will proceed at the times and in the manner stated in the deposition notices.

Accordingly, it is ORDERED that the emergency motion for a protective order (ECF No. 64) is DENIED.

It is further ORDERED that the depositions of Tim Sennett, Bob Schurig, Matt Johnson, and William Grandberry shall proceed as stated in the deposition notices and subpoenas (if any) via videoconference mode as indicated by plaintiff's counsel.

It is further ORDERED that the defendant must promptly provide to plaintiff's counsel remote connection information for the witnesses so that the depositions can proceed remotely.

DAVID M. LAWSON, United States District Judge