Chris Montgomery, Unsplash
Under Rule 37 of the Rules of the Commercial Division, the court may order a remote deposition upon (1) consent of the parties, or upon (2) a motion showing good cause.
In spite of the increasing reliance on remote depositions in the wake of the COVID-19 pandemic, a recent decision from Justice Robert R. Reed of the Manhattan Commercial Division in DOIT Hospitality Del. LLC v Reuben Bros. Ltd. demonstrates that, absent mutual consent, the proponent of a remote deposition bears a substantial burden in establishing “good cause.”
Background
In DOIT Hospitality Del. LLC, a discovery dispute arose regarding whether the plaintiff’s fact witness, residing outside of the United States, must be produced for an in-person deposition in New York. While the plaintiff had offered to produce the witness remotely, the defendant maintained that the witness should be produced in-person in New York.
The plaintiff contended that the deposition of the witness, who resides in India, must be conducted remotely because the witness did not possess documentation required to legally travel to the United States. Specifically, the plaintiff argued that “the current wait time in India for an appointment to apply for a visa interview is 151 days and that [the witness] is ineligible for an interview waiver. Without an interview waiver… [the witness] will likely be unable to secure an appointment, let alone a visa, in time to travel to New York for his deposition.”
In response, the defendant argued that the plaintiff had not established “good cause” within the meaning of Rule 37 because the plaintiff failed to offer any evidence demonstrating that the witness had taken the necessary steps to obtain the visa required to travel to the United States. The defendant also asserted that it had the right to conduct an in-person deposition of the witness in order to effectively assess his credibility.
Analysis
Rule 37 concerning remote depositions provides:
(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.
The court in DOIT Hospitality Del. LLC found that the plaintiff failed to establish any undue hardship if the witness were compelled to travel to New York. The alleged extensive wait time for a visa interview did not, on its own, make the witness’s travel to New York impossible or impracticable, or otherwise demonstrate “good cause” to allow a virtual deposition. The court also noted that the plaintiff did not set forth the witness’s efforts in securing the necessary visa and/or other travel documents since the defendant served the notice of deposition upon the plaintiff on July 9, 2024—more than nine months prior to the court’s order in April 2025. Nor did the plaintiff explain its failure to assist in obtaining a travel visa for its key witness, at any time during three long years of litigation.
The court also found that the record amply demonstrated the significance of the witness’s testimony in the action. For one, the witness submitted an affidavit wherein he affirmed his role as the plaintiff’s authorized representative with firsthand knowledge of the allegations in the Complaint. The witness also participated via Zoom in a virtual UCC auction wherein the defendant acquired the plaintiff’s minority stake in the joint venture, which is at the heart of the dispute.
As such, the court ordered that the plaintiff “produce [the witness] for an in-person deposition in New York within 180 days…[However], [i]f [the plaintiff] fails to produce [the witness] in the time period specified, its complaint will be stricken for non-compliance. Having chosen New York as the forum in which to seek relief, [the plaintiff] cannot reasonably claim to be aggrieved by the accompanying obligations.”
Takeaway
While remote depositions have become increasingly common, litigants seeking remote depositions, absent consent to a virtual format, must meet a high threshold to demonstrate “good cause,” especially when the witness’s testimony is integral to the case.
[View source.]
