Fear of Technology is No Excuse for Avoiding Remote Deposition, Court Says: Litigation Trends

Even before the pandemic, remote depositions were becoming more popular as parties are often spread out over the US or even the world.  I’ve even been deposed remotely as recently as earlier this year.  Now, with the pandemic and stay at home orders, courts that are determined to keep dockets moving forward are beginning to force parties to submit to remote depositions, according to a recent article.

According to the New Jersey Law Journal (Judge Nixes Technophobic Litigant’s Attempt to Avoid Remote Deposition, written by Charles Toutant), New Jersey Superior Court Judge Bruce Kaplan issued an order earlier this month compelling the plaintiff in a slip-and-fall lawsuit to submit to a remote deposition via teleconference, brushing aside her protestations about lacking technical knowledge.

The ruling, believed to be the first of its kind in New Jersey, is an indicator that remote depositions have rapidly won acceptance and that resisting the new technology in court will be an uphill battle.  The remote deposition ruling is also another indicator that those who resist the New Jersey judiciary’s measures to keep court proceedings moving during the COVID-19 pandemic shouldn’t expect sympathy from the courts.

In this case, lawyers for BJ’s Wholesale Club moved to compel discovery of Elma Thomas of Piscataway after she canceled an April 16 virtual deposition and refused to submit to remote questioning.

John McConnell, of Goldberg Segalla in Princeton, representing BJ’s, sought to have a “flight pack” delivered to Thomas’ home, consisting of an iPad, speaker, hot spot, charger and stand. The court reporter would remotely assist Thomas with setting up the apparatus and would control the device remotely. The cost of the service, $159, would be borne by BJ’s.

But, Thomas’ lawyer, Patricia Boguslawski of Davis, Saperstein & Solomon in Teaneck, told the Court that a virtual deposition would cause “unnecessary stress, annoyance, oppression and undue burden” to her client. In court papers, Boguslawski said Thomas is a 72-year-old Jamaican woman with a heavy accent, “who has absolutely no knowledge of any technology, no knowledge or access to the internet, no audio or visual knowledge, no e-mail, no printer,” and is “in no way technologically inclined nor does she live with anyone who can help her.”

Boguslawski said that although New Jersey’s stay-at-home order remains in place, the state had entered phase one of reopening. She added that discovery in the case was running through Aug. 16 and could be extended if needed, so that “there would be no prejudice to the defendant in conducting the deposition in person when it is safe to do so.”

McConnell, in turn, referenced an April 24 Supreme Court order which indicated that, “to the extent practicable,” depositions “should continue to be conducted remotely using necessary and available video technology.”

Kaplan’s order said that if an in-person deposition could not be held, Thomas was to participate in a deposition by Zoom or a similar system no later than July 11. In a brief statement of reasons, Kaplan said he accepts the representation of Boguslawski that her client would experience “significant hardships” from conducting a virtual deposition. But Kaplan went on to say “this case must move forward and the defendant is entitled to take the plaintiff’s deposition.”

Also earlier this month, New Jersey Supreme Court Chief Justice Stuart Rabner issued an order revising a plan to conduct grand juries remotely via Zoom. When the virtual grand jury pilot project was announced on May 14, the court said defendants would be allowed to opt out of the pilot program, but widespread objections by defendants and counsel prompted the courts to make the program mandatory.

Looks as though the courts are determined to keep dockets moving any way they can – including, remotely if necessary – at least in New Jersey.  Hat tip to Maureen Vilanova for the heads up on the article!

So, what do you think?  Should courts force witnesses to participate in remote depositions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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