In Bush v. Alliant Content, LLC, 2022 NY Slip Op 22199 (NY Sup. Ct. Westchester Cty. July 5, 2022), the court ruled on an issue that became particularly relevant during the COVID pandemic, namely, whether a deposition – a proceeding, part of the “discovery” process in civil litigation, comprising the interposition of real-time questions to a witness who answers said questions under oath – must be conducted in-person, or may be conducted remotely.
Here, the plaintiff seeks, over defendant’s objection, to appear for her deposition remotely, on the ground that she is at high risk for covid because she is not vaccinated and a recent cancer survivor.
On this point, the operative statute is Rule 3113 of the New York Civil Practice Law and Rules (CPLR), which provides: in part:
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.
The court explained this rule, and how it applies here:
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. [T]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.
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. 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.
The court elaborated on the protections that must be employed for plaintiff’s in-person deposition, including that it be held in “a large enough conference room so that each individual is spaced at least three feet apart,” and the use of glass or plastic partitions to separate the participants.