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May 15, 2020

NYS COVID-19 Administrative Orders Don't Require Parties to Appear for Remote Depositions

Ordinarily, remote depositions only occur if the parties stipulate pursuant Civil Practice Law and Rules §3113(d) or if one party obtains a protective order allowing their own deposition to proceed by electronic means because an in-person deposition would cause undue hardship. With COVID-19 and the public health restrictions mandated by the NYS governor and chief administrative judge, NYS attorneys are increasingly agreeable to conducting depositions through videoconference technology. A litigant may not force an unwilling party to participate in a remote deposition, however, simply because in-person depositions remain prohibited under the governor’s executive orders mandating social distancing.

Despite the interest of litigants to move their cases forward, the chief administrative judge has ordered that in “no event will participants in civil litigation be penalized if discovery compliance is delayed for reasons relating to the coronavirus public health emergency” (AO-71-20). Accordingly, a litigant is currently permitted to defer depositions until they can be held in person again. In normal circumstances, a party may also obtain an order pursuant to CPLR §3124 to compel the other party to appear for a deposition. Under current conditions, there appears to be no basis to compel testimony to be obtained by electronic means, and the COVID-19 restrictions prevent in-person depositions.

Thus, absent an executive or administrative order to the contrary, a litigant seeking to conduct a deposition must either reach an agreement with the opposing party or will simply have to wait until in-person depositions resume. Nonetheless, combined with the increasing acceptance and widespread use of videoconference technology among litigants, the judiciary’s interest in seeing that litigation advances may result in a future mandate that parties participate in remote depositions as long as social-distancing rules remain.

If you have any questions regarding the content of this alert, please contact David Fulvio, associate, at dfulvio@barclaydamon.com or another member of the firm’s Torts & Products Liability Defense Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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