Experienced trial lawyers are able to resolve the vast majority of pretrial disputes without involving a court, particularly when the issue is whether a particular deposition should be conducted in person or remotely.

When negotiations fail over the location of a deposition or the manner in which the deposition will be conducted, the governing standard in federal courts is Rule 26(c) of the Federal Rules of Civil Procedure, which empowers courts to limit or regulate the taking of evidence when “good cause” exists.

Remote interviews provide trial lawyers with efficiency and cost savings compared to in-person interviews, which may involve the inconvenience of traveling to another city or, as we mentioned, may be difficult to schedule within the time frames specified in pretrial discovery orders. But traditional in-person interviews have their advantages, too. When it appears that trial goals will rise or fall based on a witness’s testimony, many experienced trial lawyers are reluctant to forego the scrutiny of an in-person interview. Other strategic considerations may also come into play. Every case is different.

When negotiations fail over the location of a deposition or the manner in which the deposition will be conducted, the standard in federal courts is Rule 26(c) of the Federal Rules of Civil Procedure, which authorizes courts to limit or regulate the taking of evidence when “good cause” exists. Recent experience with Rule 26(c) in the context of remote deposition has shown that while all courts apply the “good cause” standard in their rulings, some are sympathetic to a trial attorney’s insistence on in-person deposition, while others clearly are not.

There must always be a good reason

Recently, a judge circumvented the “good cause” principle and ordered that multiple depositions in a multi-district product liability case be conducted remotely because the judge believed it would be more efficient. In re: Chrysler Pacifica recall due to fire hazard, product liability dispute.No. 22-3040 (ED Mich.), the Justice of the Peace initially found that numerous named plaintiffs failed to demonstrate good cause for a protective order that would have spared them the inconvenience of traveling to the Eastern District of Michigan for in-person testimony. The Justice of the Peace rejected the plaintiffs’ argument that the general COVID-19 concerns raised by the trip to Michigan could provide the necessary “good cause” for a protective order.

However, the judge continued, considerations of procedural efficiency may support an injunction requiring remote testimony. “Procedural efficiency is of particular importance in a class action lawsuit,” the judge noted, adding, “To ensure procedural efficiency, the court granted plaintiffs’ motion to protect them from having to travel to this district to testify.”

The judge also concluded that an order authorizing remote testimony is supported by Rule 26(b)(2)(C). This rule allows courts to limit the scope of discovery when the same information can be obtained from a less incriminating and costly source. In this case, the judge ruled that a less incriminating source is remote testimony in the plaintiff’s home district.

The defendant appealed the justice of the peace’s order and largely prevailed. The district court, in In re Chrysler Pacifica Fire Recall Prod. Liab. Litig., No. 22-3040 (E.D. Mich. June 18, 2024), rejected both of the justice of the peace’s justifications for ordering remote interviews. The court held that the justice of the peace’s reference to Rule 26(b) was clearly erroneous. The relevant rule for protective orders is Rule 26(c), which deals with the scope of disclosure. Rule 26(b), it said, authorizes courts to limit the “frequency” or “extent” of disclosure, provided that the same information can reasonably be obtained from “other sources” that are more convenient or less costly to obtain.

The court found that the magistrate’s order actually authorized a protective order purely for reasons of convenience and cost. While Rule 26(c) requires a showing of “good cause” – a significantly higher standard – it noted. In this case, the magistrate judge’s order to conduct the depositions by Zoom videoconference was a protective order under Rule 26(c) and not an order limiting the “scope” or “frequency” of disclosure under Rule 26(b)(2)(C). In conclusion, the court wrote:

The fact that taking testimony remotely may be an economical and appropriate means in some cases (at least where the parties agree on the method or where exceptional circumstances such as the infirmity of a witness make personal questioning unreasonably risky) does not mean that there is a valid reason requiring all claimants to take testimony remotely, simply because of the routine inconvenience and expense of participating in litigation for any party who chooses to bring an action in a court located far from their place of residence.

The court awarded the plaintiffs a small victory, finding that several plaintiffs had indeed raised “good reasons” for conducting their depositions in their home districts, based on evidence of specific, compelling health concerns and family obligations. However, the court found no good reasons for conducting the depositions remotely; it left that question to trial attorneys to resolve.

Key findings

What guidance can litigation lawyers draw from this judgment?

First, there is no way around the requirement of Rule 26(c) that a “good cause” must be shown if a party wishes to have a deposition – which was announced as being held in person – conducted remotely instead.

Second, “good cause” claims must be based on the unique circumstances of a particular witness. Generalized, blanket claims of hardship are not sufficient to justify a protective order for all witness testimony.

Third, health concerns and family responsibilities may provide the necessary “good cause” for a protective order restricting travel to a distant deposition location. In this case, the district court held that the following circumstances provided “good cause” for a protective order:

• Chronic pain that makes traveling difficult
• Status as sole caregiver of an elderly, frail relative
• Recovery from serious injuries in a car accident and the associated need for regular physiotherapy
• Status as sole carer for two autistic children
• Status as sole carer for six teenagers

Fourth, courts will give weight to counsel’s decision to conduct a deposition in person. Remote depositions can present challenges that some attorneys find difficult to overcome. (One court found that it would be “a matter of attorney misconduct” to conduct a remote deposition designed to investigate allegations of perjury in prior testimony. See Radiant Glob. Logistics, Inc. v. BTX Air Express of Detroit, LLCNo. 18-12783 (ED Michigan April 22, 2020)).

Fifth and finally, it will be difficult for the parties to convince the court that it would be an unnecessary burden to appear to give evidence in the court in which they brought the action.

Outside the federal system, some states have adopted their own standards and presumptions for “good cause” that favor remote testimony. For example, new court rules in Washington place the burden of proving good cause on the party opposing remote testimony. Regardless of jurisdiction, however, the best course of action in most cases is for counsel to manage pretrial discovery – including testimony – with the opposing party in a manner that promotes efficient and expeditious disposition of the case at hand.