Arguing for a Virtual Deposition
The default rule of depositions is that depositions will take place in person. This is because it is easier to hold depositions in person so that witnesses can look at exhibits more easily, there are less technical challenges, the parties can better get a sense of nonverbal cues, and other reasons. During the COVID-19 pandemic, it has been commonplace to hold depositions virtually in order to promote the safety of everyone involved. However, virtual depositions are not new, and there are a few things people should keep in mind when arguing for a virtual deposition.
Undue Hardship
The standard that individuals should keep in mind when arguing for a virtual deposition is undue hardship. If it would be particularly burdensome and difficult for a deponent to appear for an in-person deposition, then the deposition may occur virtually. It is usually incumbent upon the party seeking to hold the deposition virtually that a hardship exists. This usually involves presenting physician letters, affidavits, and any other evidence that may demonstrate that it would be burdensome for someone to appear at an in-person deposition. There are generally several categories of situations individuals arguing for a virtual deposition should keep in mind when courts typically order depositions by remote means.
Medical Reasons
One of the strongest grounds for arguing for a virtual deposition is when the deponent has medical reasons that prevent him or her from traveling to a deposition location. Courts wish to preserve health and safety and may dispense with the requirement of holding depositions in person in favor of virtual proceedings for these reasons. Some common medical reasons that might prompt a virtual deposition include mobility issues, higher risk of stroke from traveling, contagious illnesses, and any other condition that might make it risky to hold an in-person deposition.
When arguing for a virtual deposition due to medical reasons, parties need to prove that the deponent has a medical condition and that this would prohibit them from appearing in person for a deposition. This may include submitting an affidavit, a letter from a physician, and other records that tend to prove that the deponent has a medical condition and this would impose an undue hardship if a deposition was held in person. Although medical issues are sensitive in nature, an experienced attorney can find ways to convey the medical matters to the court while preserving the privacy of the deponent.
Long Distances
Another important ground when arguing for a virtual deposition is when a deponent is located a far distance away from the place where the deposition will take place. Parties who need to travel far distances need to spend an inordinate amount of time in airports and other traveling facilities in order to appear for a deposition and this can pose an undue hardship. Moreover, there is often significant cost associated with traveling long distances which also may impose a hardship on a party.
The amount of distance which might militate in favor of a virtual deposition differs from judge to judge. Courts are usually willing to order virtual depositions when a deponent lives on the opposite coast from the place where the lawsuit is venued. Moreover, courts are often wiling to hold virtual depositions when someone needs to travel internationally to attend a deposition. However, other distances may prompt inconsistent responses from courts, and experienced lawyers may have perspectives about whether a given travel distance may form the basis for holding depositions virtually.
Visa Issues
A rare, but powerful situation that applies when arguing for a virtual deposition is when a potential witness has visa issues and cannot travel to the United States to be deposed. There are some kinds of cases that involve witnesses who reside in different countries. Indeed, certain kinds of transnational disputes may involve witnesses who reside in multiple foreign countries. Depending on the country in which a witness resides, it might be difficult for the deponent to obtain a visa to travel to the United States, especially if the deposition is scheduled on short notice. Courts do not usually like to punish individuals for factors that are largely out of their control, and in such instances, it is common for judges to order that depositions proceed virtually.
Repetitive Depositions
Another situation when arguing for a virtual deposition that might be persuasive is when the deponent has been deposed before. Sometimes, deponents need to submit to an additional deposition because new facts may have come to light since the original deposition took place. Moreover, if a deponent refused to answer certain questions at the initial deposition, it is possible that a court will order another deposition so that the parties have a chance to question the deponent about specific questions. In such instances, it is usually less likely that a judge will require a deponent to appear in person again. This is because such subsequent depositions are usually shorter than the first deposition and the deponent has already been burdened to appear in person for their initial deposition.
The Rothman Law Firm is experienced with taking and defending deposition, and we have argued in support of and against virtual deposition on behalf of our clients for years. If you are looking for an experienced New York and New Jersey attorney to handle your deposition or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.