Lawyers everywhere (and their clients) have adapted to various court processes proceeding remotely during the pandemic. The ability to use technology has kept the court system functioning and the legal system afloat during a trying few years. Moving forward, remote technology will become more commonplace and has already been adapted by courts in various jurisdictions for a wide variety of purposes.  Clients may wonder how this will affect their representation. At Einbinder & Dunn we have a national practice, and so have readily adopted remote technology to serve our clients' needs over the years. As the courts nationwide start to embrace technology, our clients stand to benefit from these time and cost-saving measures. One area where remote technology has been used with increasing regularity is during depositions.

A deposition is an interview, outside of a courtroom, that occurs under oath in advance of a trial. If you or your business are involved in litigation, the attorney for the opposing party may depose you. This process is part of discovery, which is when the parties to litigation provide each other with documents and other information that will assist with claims or defenses at trial.

Commercial Division Courts in New York State have begun to allow for remote depositions in certain cases. Under the Commercial Division Rules, this is addressed under Rule 37. Rule 37 took effect on Dec. 15, 2021. This Rule took effect shortly after Rule 36, which allows for remote evidentiary hearings and bench trials. Under Rule 37, remote depositions are made permissible by either consent or on a showing of good cause.

This means, in a business dispute, if you and the other side agree, depositions can be conducted remotely. This may save the attorney time and will save you from having to travel for a deposition. If you and the other side do not agree on whether to conduct depositions remotely, then the party seeking a remote deposition must ask the Court for permission by filing a motion. If the Court finds that there is ‘good cause,' it will grant the motion.

What Constitutes “Good Cause?”

Rule 37 gives a non-exhaustive list of considerations given to motions in showing of “good cause:”

• The distance between the parties and the witness – weighing time and travel costs for counsel, litigants, and witness to reach the deposition location;
• The safety of the parties and the witness, and whether they can safely convene in one location for the deposition;
• Whether the witness is a party to the litigation; and
• The anticipated significance of the witness's testimony.

Note that the safety of the parties is given priority over all other criteria. This is more relevant than ever during the COVID-19 pandemic and possible future pandemics or endemics.

What Are the Potential Downsides of Rule 37?

Aside from the obvious concerns about technical difficulties, perhaps the most glaring potential problem that could arise from remote depositions is one of integrity. Specifically, the inability to monitor witnesses' surroundings, off-screen activity, or other applications/functions open on their computer during questioning makes the entire process susceptible to manipulation by unscrupulous parties. For example, although the protocols in Appendix G of Rule 37 explicitly forbid counsel from communicating with a deponent during questioning, in practice it would be very hard to police against counsel messaging witnesses through the computer on some other chat medium. Alternatively, witnesses could receive off-screen coaching from somebody in the room with them, undetected by the individuals in the videoconference (some critics of the new rule advocate for providing witnesses with 360-degree cameras to prevent this). A witness might also feign technical difficulties when faced with difficult questions.

What Are the Advantages of Rule 37?

The advantages of Rule 37 are, in large part, the same advantages to remote work universally: Reduced time (and, thus, costs of taking depositions) which can lead to greater ease in scheduling, convenience of the parties, and greater safety for those involved. It allows attorneys and clients to work in a place that is comfortable. At Einbinder & Dunn we have conducted and defended remote depositions during the pandemic. In general, the experience was a great advantage to our clients: We were able to save on attorney travel (and thus, significantly reduce client expenses), conduct multiple depositions of witnesses in a day (when, for example, witnesses are located in different states), and, in general, made scheduling depositions less complicated. As remote practice becomes commonplace, we expect our experience to only make the process easier for our clients.