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Thursday, January 14, 2021

Deponents Can Force Virtual Depositions During COVID-19 Pandemic

One of the most important parts of the discovery process in any claim or civil litigation are the depositions.  In a personal injury claim, the injured party is almost always deposed and the defendant is often deposed as well (unless liability is not disputed).  In an employment law claim, depositions can take place not only of the people directly involved in the claim, but often all of the employees of the company.  Any litigator will tell you the importance of depositions to a legal claim.  They can make or break a lawsuit, sometimes only with one wrong answer.  If a deposition goes well, it can often put the pressure on a defendant to make a reasonable settlement offer.  A recent Middlesex Superior Court decision may have changed how depositions are conducted and what information can be gained from them (at least for the foreseeable future). 

In the matter of Dumouchel, et al. v. Love, et al., a group of Holliston residents appealed the town's Zoning Board of Appeals' decision to grant a variance to a local developer.  The developers' attorney began making inquiries in August 2020 for the Plaintiffs' depositions- and he wanted to do them in person.  While virtual depositions have become the norm during the COVID-19 pandemic there have been many attorneys that have either delayed all their depositions or tried to insist they be held as normal- meaning in-person.  Some attorneys cannot figure out the technology behind virtual depositions and others believe a deposition is not as effective virtually.  For many reasons, they are correct- deponents attention can wander with distractions at home or (scarily enough) on the road; there can be technological issues; deponents may be able to look up information during the deposition (which is not allowed but harder to monitor virtually); and attorneys have a tougher time "reading" deponents without sitting across the table from them and seeing if they make direct eye contact while answering the questions. 

For some of these reasons, the defense attorney in Dumouchel insisted that the Plaintiffs' depositions be held in person claiming his firm had an extra-large conference room that could easily accommodate distancing and other protocols.  The Plaintiffs opposed doing the depositions in person for health and safety reasons and informed defense counsel that he would need to get a Court Order.   Defense counsel filed for a Motion to Compel the in-person depositions and sought a Court Order but Middlesex Superior Court Judge Patrick M. Haggan denied the Motion referencing Supreme Judicial Court Order OE-144 which was issued on May 26, 2020 and stated that "desire of counsel, a party, or a deponent to appear in person shall not alone be sufficient grounds to quash a notice for remote deposition or top refuse to make a witness available for a remote deposition."  Judge Haggan wrote that "it is logical to infer that the desire of counsel or a party to proceed in-person for a deposition, is not alone sufficient to require a deponent to appear in person if available to be deposed remotely."

What is interesting about this decision is not only the ability of deponents to request, if not require, that their depositions be held remotely during the pandemic, but will this practice continue once things get back to normal?  Virtual depositions may have their downsides but they also are more time efficient, more flexible, and can save time and money.

If you have received a deposition notice or have any questions about a deposition notice, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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