Following up on the recent addition of a new rule governing virtual evidentiary hearings and trials (https://www.pbwt.com/ny-commercial-division-blog/new-commercial-division-rule-on-virtual-evidentiary-hearings-and-trials/), last week, the Commercial Division promulgated Rule 37 of section 202.70(g) of the Rules of the Commercial Division of the Supreme Court. Rule 37 is entitled “Remote Depositions,” and it is effective as of December 15, 2021. Along with Rule 37, the Commercial Division also added Appendix G as a form protocol for parties to use for remote depositions.
Rule 37(a) provides that the court may order that depositions be conducted by remote electronic means upon consent of the parties or a motion showing good cause. Rule 37(b) then lists the factors that the court will consider on a motion for good cause. The factors include but are not 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.[1]
Rule 37(b) further states that “[f]or the avoidance of doubt, the safety of the parties and the witness shall take priority over all other criteria.”
Rule 37 also explains, that remote deposition should replicate in-person depositions to the extent practical,[2] including by allowing witnesses and defending attorneys the “right to review exhibits at the deposition independently to the same degree as if they were given paper copies.”[3]
In addition, Rule 37 encourages parties to utilize Appendix G, a new form protocol for remote depositions. Appendix G addresses many of the specific logistical and legal considerations involved in remote depositions. For example, Appendix G provides that parties will not object to the use of recorded remote depositions at trial on the basis that the deposition was taken remotely. The form protocol makes clear that that counsel and deponents shall refrain from all private communication during questioning on the record and that all electronic devices, other than the devices being used for videoconferencing and exhibit sharing shall be turned off during the deposition. It further provides that if the defending attorney is unable to make objections and interpose instructions not to answer due to technical difficulties, the failure to object or to instruct the witness shall not be construed as a waiver. It also specifies, among other things, that parties can use a breakout-room feature during breaks in the deposition and that conversations in the breakout rooms should not be recorded, and that the parties can choose whether to exchange exhibits virtually or by sending hard copies in advance.
As we head into a potential new wave of the COVID-19 pandemic this winter, practitioners can welcome the added clarity provided by Rules 36 and 37 with respect to conducting virtual litigation in the Commercial Division.
