Discovery obligations during the pandemic

Jae Ellis

Having resolved discovery disputes related to the COVID-19 pandemic for almost a year, trial courts have considered myriad creative discovery objections concerning whether and how litigants must present their witnesses for deposition testimony. With increased familiarity and experience resolving with these objections, and with the various deposition methods and technology tools available to counsel, trial courts are signaling, more and more, that they expect the parties to proceed with discovery in pending litigation and that they will not indulge opportunistic attempts to use the COVID-19 pandemic as a strategic weapon to dilute an opponent’s right to discovery under the applicable rules of civil procedure.

In Sunstate Equip. Co. v. Equip. Share, the federal district court denied the defendants’ motion for a protective order to stay in-person depositions. Highlights from the court’s short opinion include:

Defendants assert it is an undue burden to do in-person depositions due to the current COVID-19 pandemic.

. . .

The court acknowledges the magnitude of the COVID-1[9] pandemic and the serious health challenges it presents. Yet, simply referencing the pandemic is not a golden ticket to get out of discovery obligations.

. . .

Defendants want their own counsel present for any deposition, but they do not want opposing counsel present, citing to health concerns. According to Plaintiff, Defendants refused the offer of either doing the depositions entirely remotely-with everyone appearing remotely-or allowing an individual Defendant to appear in-person with both their own counsel and opposing counsel present and socially distanced.

. . .

If Defendants are concerned about their health risks due to the COVID-19 pandemic, then they may certainly choose to do a remote deposition. But, that choice includes everyone using remote technology. If Defendants desire their counsel to be present and in-person for the deposition, then the court finds it is appropriate to have opposing counsel present too, with everyone exercising proper social distancing and any other needed precautions.

Sunstate Equip. Co. v. Equip. Share, (D. Utah, Dec. 16, 2020), Case No. 2:19-cv-784 HCN.


. . .

As the one-year anniversary of the COVID-19 pandemic is near, courts and counsel have embraced (some enthusiastically, and others, reluctantly) new strategies, methods, technology, and facilities for conducting depositions.

As a leading provider of deposition services for law firms and their corporate clients, Courtroom Sciences, Inc. (“CSI”) has observed a growing trend of litigants moving forward, rapidly, with previously delayed depositions and other discovery.

Specifically, CSI’s law firm and corporate legal department clients took the fewest depositions in April 2020 (only 46% deposition count compared to pre-pandemic count from January 2020) before increasing their October deposition count to 107% of the same pre-pandemic baseline.

In addition, in May 2020, 82% of depositions taken by CSI clients were conducted remotely, but for the five months ending with October 2020, the average monthly percentage of depositions taken in-person rose to 31%.

As you accelerate discovery in your active cases, CSI is available to help you to maximize the productivity of your legal practice by offering options to conduct depositions safely and responsibly. Whether you are taking depositions in-person or remotely, CSI can help you conduct depositions while adhering to best practices for social distancing.

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