H & T Fair Hills, Ltd. v. Alliance Pipeline L.P.

Background

Alliance Pipeline L.P. moved under Federal Rule of Civil Procedure 30(b)(4) to require the parties’ fact depositions to occur by remote means. The motion concerned depositions during the COVID-19 pandemic and the approaching December 11, 2020 fact-discovery deadline.

Rule 30(b)(4) permits the parties to agree to a telephone or other remote deposition, or permits the court to order one on motion. The court explained that it has broad discretion over discovery and should weigh the proponent’s reasons for a remote deposition against the opposing party’s claimed prejudice or hardship.

The Court’s Analysis

The court applied a two-part analysis. First, the party seeking remote depositions had to show a legitimate reason. The court found that reducing the risk of COVID-19 transmission was a legitimate reason for requiring remote video depositions. It considered the health risks of prolonged indoor exposure, the health concerns identified by defense counsel, the number of fact depositions, the discovery deadline, and the nature of the case.

Second, the plaintiffs had to show prejudice or hardship from remote depositions. For depositions already noticed, scheduled, or identified in the parties’ correspondence, the court found that the plaintiffs had not shown that they or any particular witness were unable to participate remotely. The parties had confirmed that all depositions conducted up to the hearing had been remote, with participants connecting from separate locations.

The court rejected the plaintiffs’ general objections that remote depositions would prevent in-person questioning, create difficulties with documents, or prevent counsel from being in the same room as a client or third-party witness. It concluded that current videoconferencing technology could display witnesses and documents and could provide private virtual rooms or separate connections for breaks and attorney-client discussions. The court also stated that the parties should develop procedures for objections, instructions not to answer, and pauses before witnesses answer questions.

Ruling

For fact depositions identified as of the hearing date, the court ordered that they be conducted by remote video conference and that no participants be in the same room with another participant unless the court later ordered otherwise.

For fact depositions involving witnesses not yet identified as of the hearing date, the court denied Alliance Pipeline’s motion without prejudice. The court had found a legitimate reason for remote depositions generally, but it would not decide the hardship or prejudice issue for an unidentified witness without giving the opposing party an opportunity to present witness-specific circumstances.

The court required the parties to meet and confer within two business days about a remote-deposition protocol and a process for addressing future objections. It ordered them to file a proposed protocol by September 21, 2020. The final order stated that Alliance Pipeline’s Motion to Compel Remote Depositions was granted in part and denied in part without prejudice as described above.