In today's episode, Jim Garrity discusses the ongoing seismic shift in judicial views about remote video depositions, as reflected in a court ruling four days ago. There, a judge refused to order a plaintiff to travel to the jurisdiction for an in-person deposition. The judge's reasoning? The sharp improvement in technology has made video depositions the functional equivalent, and credibility assessments can be made just as well remotely as in person. Listen in for the details, and for practice tips on arguing for or against remote depositions of critical or party witnesses. Thanks for listening!

SHOW NOTES:

Henry v. Tacoma Police Department, et al., 2023 WL 5530201, case number 3:22-CV-0553-LK (W.D. Wash. Aug 28, 2023) (applying two-pronged test for determining whether deposition that be done remotely or in person, court granted pro se plaintiff’s request that defendant depose him remotely, rather than forcing plaintiff to travel 2,600 miles to Tacoma, Washington from Jonesboro, Georgia; rejecting defense argument that credibility assessment was reason enough to force an in-person deposition)

City of Tacoma's Response to Plaintiff's Motion for Remote Deposition/Protective Order, filed August 16, 2023), CM/ECF Doc. 70, Henry v. Tacoma Police Department, et al., Case No. 3:22-CV-0553-LK (W.D. Wash. filed Aug. 16, 2023) (defendant's memorandum in opposition to remote deposition)

Brower v. McDonald’s Corp., No. 2:19-CV-02099-GMN-BNW, 2021 WL 3573633 (D. Nev. May 28, 2021) (providing that “leave to permit remote depositions should generally be granted liberally;’ analyzing the suitability of remote deposition using a two-step procedure, saying that “first, the proponent must advance a legitimate reason for seeking a remote deposition; and (2) if the movant articulates a legitimate reason, then the burden shifts to the opposing party to make a particularized showing that conducting the deposition by remote means would be prejudicial")

Vargas v. Evergreen Professional Recoveries, Inc., Case No. 2:21–CV–00926–RSL–JRC, 2022 WL 856991 (W. D. Washington March 23, 2022) (applying two-step analysis articulated in Brower, above)

The Jury Trial Reinvented, Robertson, C. and Shammas, M. 9 Tex. A&M L. Rev. 109 (Fall 2021) (outlining concepts for trials presented entirely by video, with testimony edited based on objections Suppose that, instead of producing live trials, courts created high-quality videos capturing all aspects of a trial, including opening arguments, testimonial and documentary evidence, closing arguments, and the judge’s instructions.

Nate Raymond, Texas Tries a Pandemic First: A Jury Trial by Zoom, REUTERS (May 18, 2020, 6:19 AM), https://reut.rs/3hKVqCs [http://perma.cc/J3H6-6496].

Herbert B. Dixon, Jr., Pandemic Potpourri: The Legal Profession’s Rediscovery of Teleconferencing, 59 Judges’ J. 37, 38 (2020) (reporting on a misdemeanor criminal jury trial conducted virtually, where jury returned guilty verdict after deliberating in “private virtual room”)

Griffin v. Albanese Enterprise, Inc., Courtroom View Network, https://pages.cvn.com/duval-county-florida-remote-trial-program [https://perma.cc/ERD9-VMEL] (relating to what was believed to be the country’s first fully remote state court civil jury trial, with a binding verdict; jurors awarded plaintiff more than $300,000 for battery caused by bouncers in a nightclub; jury selection and all other key elements were conducted remotely)

Fed. R. Civ. P. 30(b)(4) (providing for remote depositions upon stipulation by the parties or by motion and court order)