Wag Hotels, Inc. v. Wag Labs, Inc.
- Beth Freeman
- 5:20-cv-01326
- U.S. District Court · Northern District of California
- 5
In Wag Hotels v. Wag Labs, Magistrate Judge Demarchi ordered David Appel’s deposition in person and required further review of Jessica Fuery-Pum’s health circumstances.
Wag Hotels, Inc., Wag Labs, Inc., and the two witnesses whose depositions were at issue—Jessica Fuery-Pum and David Appel—were affected by the order.
What happened
Wag Hotels, Inc. v. Wag Labs, Inc. concerned whether two witnesses could be questioned in person or remotely because of COVID-19 concerns. Wag Hotels opposed in-person depositions, while Wag Labs preferred them.
The court found that Wag Hotels had not shown that either witness faced a high risk of serious illness. It ordered David Appel’s deposition to proceed in person if local COVID-19 levels remained low or medium, with reasonable safety precautions.
For Jessica Fuery-Pum, the court required the lawyers to promptly discuss her circumstances; her deposition should be remote if she is at high risk or lives with someone at high risk, unless she agrees to appear in person. Magistrate Judge Virginia K. Demarchi issued the order.
The detailed version
- Wag Hotels, Inc. v. Wag Labs, Inc. · No. 5:20-cv-01326
- Beth Freeman
- Sept. 12, 2022
Background
The parties asked the court to resolve a discovery dispute about whether Wag Hotels’ chief financial officer, Jessica Fuery-Pum, and chief executive officer, David Appel, should give deposition testimony in person or by remote video conference. Wag Labs, Inc. had noticed the depositions to occur in person at its counsel’s San Francisco offices. Wag Hotels, Inc. objected and proposed video depositions or outdoor depositions because of COVID-19 and related health concerns.
Court’s analysis
Under Federal Rule of Civil Procedure 30(b)(1), the party seeking a deposition generally may set its time and place with reasonable written notice. Under Rule 26(c)(1), however, the court may issue a protective order to protect a person from annoyance, embarrassment, oppression, or undue burden or expense. The court weighed the possible harm to the witnesses from appearing in person against the possible harm to Wag Labs from remote testimony.
The court found that Wag Hotels had not identified specific health concerns for either Fuery-Pum or Appel, or shown that either witness had risk factors recognized by the Centers for Disease Control and Prevention as creating a higher risk of serious illness from COVID-19. The court also noted that Appel was traveling internationally, which Wag Labs argued was inconsistent with refusing to attend a local deposition. At the same time, the court recognized that remote video depositions had become a standard practice and that Wag Labs had offered no specific reason it would be prejudiced by remote testimony beyond its preference to evaluate the witnesses in person.
Ruling
The court ordered that Appel’s deposition proceed in person as noticed unless the parties agreed otherwise, provided Bay Area COVID-19 community levels remained low or medium. The parties were expected to take reasonable precautions to reduce transmission, including potentially requiring participants to provide evidence of a negative COVID-19 antibody test taken within 24 hours of the deposition.
As to Fuery-Pum, the court directed counsel to promptly discuss her circumstances. If she was among those at high risk of serious illness from COVID-19 or lived with someone at high risk, the court expected her deposition to occur by remote video conference unless she was willing to participate in person. Judge Virginia K. Demarchi issued the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.