Civil Litigation, Commercial Litigation, Court, COVID-19, Discovery

Depositions During the New Normal Era of COVID

January 6, 2021

Depositions During the New Normal Era of COVID

Depositions have always been a vital discovery tool in civil litigation. In light of the COVID-19 pandemic, with social distancing policies in place, depositions are no longer the same. Without being able to conduct depositions in-person, many litigators are concerned about how to proceed with depositions and protecting their client’s interests. Courts across the country have taken an active role in providing guidance and implementing alternative methods for conducting depositions, such as telephone and video conferences.

Before the COVID-19 pandemic, both the Federal Rules of Civil Procedure and Illinois Supreme Court Rules permitted remote depositions. Under Illinois Supreme Court Rule 206, “[a]ny party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object.” Under Federal Rule 30(a)(1), “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Federal Rule 30(b)(4) provides that “[t]he parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” The Committee Notes underscore that this provision authorizes “the taking of deposition not only by telephone but also by other electronic means, such as satellite television, when agreed to by the parties or authorized by the court.”

In response to COVID-19, the State of Illinois decreed that “[d]uring the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19, the requirement that a person must ‘appear before’ a Notary Public commissioned under the laws of Illinois pursuant to the Illinois Notary Act, 5 ILCS 312/6-102, is satisfied if the Notary Public performs a remote notarization via two-way audio-video communication technology, provided that the Notary Public commissioned in Illinois is physically within the State while performing the notarial act and the transaction follows the guidance posted by the Illinois Secretary of State on its website.”

The Illinois Supreme Court clarified the decree by temporarily amending Supreme Court Rule 206(h). Specifically, the temporary amendment removes the requirement that deponents be in the presence of the officer administering the oath and recording the deposition. Furthermore, the Illinois Supreme Court provided additional language surrounding leniency concerning technology issues that may arise, where “time spent at a remote electronic means deposition in addressing necessary technology issues shall not count against the time limit for the deposition set by Rule 206(d), by stipulation, or by court order.”

Due to the unprecedented circumstances surrounding the COVID-19 pandemic, courts are far more like to allow remote depositions. In Lipsey v. Walmart, Inc., 2020 WL 1322850 (N.D. Ill. Mar. 20, 2020), the Northern District of Illinois provided protocols for the parties to follow before subpoenaing or scheduling medical provider depositions. The Magistrate stated that it has “developed concerns about whether the depositions of medical providers should continue to go forward without scrutiny from the Court with respect to the question of the burden that deposition participation places or may place on medical providers during the COVID-19 public health emergency.” The Magistrate further stated, “the medical community is very, very busy right now, and likely will be busy for weeks or months to come . . . . It is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck. All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.”

In the Northern District of Illinois, other orders have provided guidance on conducting remote depositions. The Magistrate executed an order regarding remote depositions and how the parties and their counsel are going “to have to have to adapt, make some choices, be creative, and compromise in this and every other case in which they are involved during this time without modern precedent.” In re Broiler Chicken Antitrust Litig., 2020 WL 3469166, (N.D. Ill. June 25, 2020). The example protocol provided by the Northern District of Illinois offers options that other courts may utilize and adopt in other cases, such as:

  • Allow the court to select the remote deposition platform to be used if the parties cannot unanimously agree.
  • Video recording of a deposition that will potentially be used for trial does not need to show both the witness and their lawyer.
  • If exhibits are to be used, a hard copy of exhibits need to be provided to the deponent or their attorney before the deposition, the exhibits should not be opened before the deposition, and the deponent will be asked under oath whether they looked at the exhibits before the deposition.

After the order was entered, the parties submitted their remote deposition protocol stipulations covering various issues that may arise.

In allowing remote depositions through video conferencing, courts are seeking to advance cases through the discovery process effectively. Since the pandemic does not have an end-date, courts are urging parties and their counsel to cooperate in establishing protocols for conducting remote deposition that satisfies as many concerns on each side. Whether remote depositions through video conferencing will be the new norm is unknown. Still, attorneys should get accustomed to participating in remote depositions.

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