It is well established under Federal law that appearance at a deposition is mandatory, especially after a notice of deposition and/or subpoena. However, in light of the recent outbreak of the coronavirus, it is certainly possible that plaintiffs and possibly other witnesses, may not want to appear at their scheduled in-person deposition. Instead, individuals may want to alter the venue of the deposition and may want to appear via videoconference. Rule 30(b)(4) of the Federal Rules of Civil Procedure provides that a court on motion may order that a deposition be taken “by telephone or other remote means.”
However, under New York Federal Law, significant discretion is given to determine the site of a deposition and as a general rule, a plaintiff is required to make themselves available for a deposition in the forum where the suit was brought. "Holding a deposition by videoconference is 'frequently a preferred solution to mitigate the burden of a deposition location inconvenient to one or both sides.'" See Alpha Capital Anstalt v. Real Goods Solar, Inc., 323 F.R.D. 179 (S.D.N.Y. 2017). Moreover, Federal Courts have asserted that a video-deposition has minimal prejudice in terms of observing the witness’ behavior or demeanor.
In Packard v. City of NY, the Court was faced with a similar dilemma where the plaintiff brought the suit in New York, as a New York resident. However, the plaintiff subsequently moved to Taiwan and objected to his deposition location in New York due to his new domicile. As a result, both parties reached an impasse and it was ordered by the Federal Court that a video-deposition was acceptable as long as plaintiff made all necessary arrangements for having his deposition taken in Taiwan and that plaintiff shall bear the additional expenses incurred due to the new deposition venue. Packard v. City of NY, 326 FRD 66 [S.D.N.Y 2018].
Given the recent eruption of the coronavirus in the United States, it is noteworthy that video-depositions are equally sufficient as in-person depositions during a chaotic time, as witnessed presently. It is conceivable that courts on the Federal and State level will liberally permit non-appearances and/or rescheduling of in-person depositions to video-depositions due to the aforementioned reasons. As such, we should anticipate that opposing counsel will attempt to schedule video-depositions of plaintiff during the present coronavirus outbreak in place of in-person depositions. However, due to the fact that a witness’ in-person deposition demeanor/behavior is critical to determine the truthfulness and veracity of any alleged claims, we may resist any video-deposition proposal or handle on a case by case basis.