New Commercial Division Rule to Permit Court to Order Remote Depositions

On December 7, 2021, Chief Administrative Judge Lawrence J. Marks promulgated new Rule 37 of the Commercial Division Rules, which expressly permits the court to order that depositions be held by electronic means--either "upon the consent of the parties" or "upon a motion showing good cause."

The new rule, which becomes effective December 15, 2021, lays out the factors the court must consider in deciding whether to order remote depositions over a party's objection--though states that the "safety of the parties and the witness" is the paramount consideration. The new rule also attaches a template protocol for video depositions, and states that no party may challenge the validity of the oath or affirmation administered on the grounds that the court reporter is not a notary in the state in which the witness is located or tis not physically present with the witness.

New Rule 37 comes on the heels of new Rule 36, which becomes effective today and which permits courts to hold virtual evidentiary hearings and bench trials. But unlike new Rule 36, which states that it "does not address" the issue of when all parties do not consent, new Rule 37 expressly permits the court to order that depositions be held virtually upon a showing of "good cause."

New Rule 37 is as follows:

Rule 37. Remote Depositions.

(a) The Court may, upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means, subject to the limitations of this Rule.

(b) Considerations upon such a motion, and in support of a showing of good cause, shall include but not be limited to:

(1) The distance between the parties and the witness, including time and costs of travel by counsel and litigants and the witness to the proposed location for the deposition; and

(2) The safety of the parties and the witness, including whether counsel and litigants and the witness may safely convene in one location for the deposition; and

(3) Whether the witness is a party to the litigation; and

(4) The likely importance or significance of the testimony of the witness to the claims and defenses at issue in the litigation.

For the avoidance of doubt, the safety of the parties and the witness shall take priority over all other criteria.

(c) Remote depositions shall replicate, insofar as practical, in-person depositions and parties should endeavor to eliminate any potential for prejudice that may arise as a result of the remote format of the deposition. To that end, parties are encouraged to utilize the form protocol for remote depositions, which is reproduced as Appendix G to these rules, as a basis for reaching the parties' agreed protocol.

(d) No party shall challenge the validity of any oath or affirmation administered during a remote deposition on the grounds that

(1) the court reporter or officer is or might not be a notary public in the state where the witness is located; or

(2) the court reporter or officer might not be physically present with the witness during the examination.

(e) Witnesses and defending attorneys shall have the right to review exhibits at the deposition independently to the same degree as if they were given paper copies.

(f) No waiver shall be inferred as to any testimony if the defending attorney was prohibited by technical problems from interposing a timely objection or instruction not to answer.

(g) Nothing in this rule is intended to: (i) address whether a remote witness is deemed "unavailable," within the meaning of CPLR 3117 and its interpretive case law, for the purposes of utilizing that witness' deposition at trial; or (ii) alter the Court's authority to compel testimony of non-party witnesses in accordance with New York law.

At the beginning of the pandemic, the attorneys at Schlam Stone & Dolan LLP were among the leaders in pushing for virtual depositions and other proceedings. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning taking, defending, or testifying in a remote deposition.