Litigators have differing views as to the effectiveness of conducting remote depositions. However, litigation needs to proceed, and waiting for depositions to restart until there is an effective COVID-19 vaccine is simply not workable. Equally not workable is for an attorney or a client in this day and age to claim that they do not have the technological capabilities to participate in a remote deposition. That is solvable with training and a mobile device. Of course, the health concerns of the parties, counsel and court reporter must be taken into account when a court is asked to compel the taking of a remote deposition.

A court needs to assess the bona fides of each sides’ reasons for either wanting an in-person deposition or, alternatively, a virtual deposition, which may include health and travel concerns due to the pandemic, credibility/demeanor issues, the document-intensity of the deposition, and the articulated reasons for prejudice and hardship to the parties and counsel. (The author notes that the Commercial and Federal Litigation Section of the New York State Bar Association issued on Oct. 28, 2020 a report entitled Virtual Depositions—Can’t Look Back Now that includes a model Remote Deposition Stipulation). In the end, the question often becomes does the party seeking the deposition during the current health crisis, over objection, get to determine the means by which a deposition will be taken? The few New York state cases, discussed below, have addressed the issue of remote depositions and take different approaches to this issue.