Roth v. PTGMB LLC

Filing 35

ORDER RE STIPULATION CONCERNING PROTOCOL FOR CONDUCTING REMOTE DEPOSITIONS. Signed by Magistrate Judge Stanley A. Boone on 9/10/2020. (Hernandez, M)

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BLANK ROME LLP
Ana Tagvoryan (SBN 246536)
[e-mail]
Harrison Brown (SBN 291503)
[e-mail]
Dustin Moaven (SBN 320939)
[e-mail]
2029 Century Park East | 6th Floor
Los Angeles, CA 90067
Telephone:
424.239.3400
Facsimile:
424.239.3434
Attorneys for Defendant
PTGMB LLC

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLI ROTH, individually and on behalf of all
others similarly situated,

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Plaintiff,
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Case No. 1:20-cv-00231-SAB
ORDER RE STIPULATION
CONCERNING PROTOCOL FOR
CONDUCTING REMOTE DEPOSITIONS

v.
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(ECF No. 34)
PTGMB LLC D/B/A MERCEDES-BENZ OF
FRESNO, a California limited liability company,
Defendant.

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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Plaintiff Kelli Roth (“Plaintiff”) and Defendant PTGMB LLC d/b/a Mercedes-Benz of

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Fresno (“Defendant”) jointly stipulate to the following protocol for conducting depositions via

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remote means in the above-captioned matter:

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1.

All depositions shall be conducted remotely using videoconference technology, and

each deponent shall be video-recorded.

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2.

The Parties agree to use Esquire Deposition Solutions (“Esquire”) for court reporting,

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videoconference and remote deposition services. The Parties agree that an Esquire employee may

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attend each remote deposition to video record the deposition, troubleshoot any technological issues

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that may arise, and administer the virtual breakout rooms.

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3.

The Parties agree that these video-recorded remote depositions may be used at a trial

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or hearing to the same extent that an in-person deposition may be used at trial or hearing, and the

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Parties agree not to object to the use of these video recordings on the sole basis that the deposition

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was taken remotely. The Parties reserve all other objections to the use of any deposition testimony at

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trial.

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4.

The deposer, deponent and court reporter will each participate in the videoconference

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deposition remotely and separately. Counsel for the deponent may participate remotely if they so

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choose. Each person attending a deposition shall be visible to all other participants, their statements

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shall be audible to all participants, and they should each strive to ensure their environment is free

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from noise and distractions.

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5.

No counsel shall initiate a private conference, including through text message,

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electronic mail, or the chat feature in the videoconferencing system, with any deponent while the

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deposition is pending. The deponent shall not communicate with anyone by text, instant message,

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email or any other electronic means while on the record during the deposition. The deponent shall

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not have any documents out of the view of the camera during the deposition, other than exhibits

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provided in accordance with paragraph 17 herein. A video visual of the room where the deposition is

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taken will be visible to the Parties upon request.

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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6.

During breaks in the deposition, the Parties may use the breakout room feature

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provided by Esquire, which simulates a live breakout room through videoconference. Conversations

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in the breakout rooms shall not be recorded. The breakout rooms shall be established by Esquire

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prior to the deposition and controlled by Esquire.

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7.

Remote depositions shall be recorded by stenographic means consistent with the

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requirements of Rule 30(b)(3), but given the COVID-19 pandemic, the court reporter will not be

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physically present with the witness whose deposition is being taken. The Parties agree not to

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challenge the validity of any oath administered by the court reporter, even if the court reporter is not

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a notary public in the state where the deponent resides.

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8.

The court reporter will stenographically record the testimony, and the court reporter’s

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transcript shall constitute the official record. Esquire will simultaneously videotape the deposition

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and preserve the video recording. The court reporter may be given a copy of the video recording and

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may review the video recording to improve the accuracy of any written transcript.

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9.

The Parties agree that the court reporter is an “Officer” as defined by Federal Rule of

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Civil Procedure 28(a)(2) and shall be permitted to administer the oath to the witness via the

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videoconference. The deponent will be required to provide government-issued identification

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satisfactory to the Parties and the court reporter, and this identification must be legible on the video

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record.

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10.

The Party that noticed the deposition shall provide Esquire with a copy of this

Stipulation and Order at least twenty-four hours in advance of the deposition.
11.

At the beginning of each deposition, consistent with Rule 30(b)(5)(A) of the Federal

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Rules of Civil Procedure, the Esquire employee responsible for video-recording the deposition shall

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“begin the deposition with an on-the-record statement that includes: (i) the officer’s name and

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company affiliation; (ii) the date, time, and place of the deposition; (iii) the deponent’s name; (iv)

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the officer’s administration of the oath or affirmation to the deponent; and (v) the identity of all

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persons present.”

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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12.

At the beginning of each segment of the deposition, consistent with Rule 30(b)(5)(B)

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of the Federal Rules of Civil Procedure, the Esquire employee responsible for video-recording the

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deposition shall begin that segment of the remote deposition by reciting (i) the officer’s name and

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business address; (ii) the date, time, and place of the deposition; and (iii) the deponent’s name.

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13.

The Parties agree to work collaboratively and in good faith with Esquire to assess

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each deponent’s technological abilities and to troubleshoot any issues at least 48 hours in advance of

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the deposition so any adjustments can be made. The Parties also agree to work collaboratively to

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address and troubleshoot technological issues that arise during a deposition and make such

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provisions as are reasonable under the circumstances to address such issues. This provision shall not

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be interpreted to compel any Party to proceed with a deposition where the deponent cannot hear or

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understand the other participants or where the participants cannot hear or understand the deponent.

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14.

Every deponent shall endeavor to have technology sufficient to appear for a

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videotaped deposition (e.g., a webcam and computer or telephone audio), and bandwidth sufficient

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to sustain the remote deposition. Counsel for each deponent shall consult with the deponent prior to

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the deposition to ensure the deponent has the required technology. If not, counsel for the deponent

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shall endeavor to supply the required technology to the deponent prior to the deposition. In the case

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of third-party witnesses, counsel noticing the deposition shall supply any necessary technology that

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the deponent does not have. Every deponent shall participate in any necessary test runs to confirm

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the functionality of their technology.

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15.

The Parties agree that this Stipulation and Order may apply to remote depositions of

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non-parties under Rule 45.

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Stipulation and Order to the non-party or counsel for any non-party under Rule 45 a reasonable time

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before the date of the deposition.

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16.

The Party noticing any third-party deposition shall provide this

The Parties agree that any of the following methods for administering exhibits may be

employed during a remote deposition, or a combination of one or more methods:
a.

Counsel noticing the deposition may choose to mail physical copies of documents

that may be used during the deposition to the deponent, the deponent’s counsel, the other Party’s
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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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counsel, and the court reporter. In that event, noticing counsel shall so inform the deponent’s

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counsel, the other Party’s counsel, and the court reporter prior to mailing the documents and shall

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provide tracking information for the package. Such documents shall be delivered by 12:00 pm PST

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the business day before the deposition. Counsel for the deponent, the other Party’s counsel, and the

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court reporter shall confirm receipt of the package by electronic mail to Counsel noticing the

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deposition. If physical copies are mailed, every recipient of a mailed package shall keep the package

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sealed until the deposition begins and shall only unseal the package on the record, on video, and

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during the deposition when directed to do so by the counsel taking the deposition. This same

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procedure shall apply to any physical copies of documents any other counsel intends to use for

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examining the witness.

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b.

Counsel noticing the deposition may choose to send a compressed .zip file of the

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documents that may be used during the deposition via electronic mail to the deponent, the

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deponent’s counsel, the other Party’s counsel, and the court reporter. The .zip file shall be delivered

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by 12:00 pm PST the business day before the deposition. Counsel for the deponent, the other Party’s

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counsel, and the court reporter shall confirm receipt of the .zip file by electronic mail to Counsel

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noticing the deposition. The .zip file shall be password protected, and counsel taking the deposition

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shall supply the password via electronic email immediately prior to the commencement of the

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deposition. Every recipient of a .zip file shall not open the .zip file until the deposition begins and

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when directed to do so by the counsel taking the deposition. If sending documents by electronic

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mail, counsel will be mindful of file size limitations, which presumptively should be less than 50

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MB.

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c.

Counsel may introduce exhibits electronically during the deposition, by using

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Esquire’s document-sharing technology, by using the screensharing technology within the

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videoconferencing platform, or by sending the exhibit to the deponent and all individuals on the

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record via electronic mail.

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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17.

All deponents receiving documents before or during a deposition, pursuant to

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Paragraph 17 above, shall return the documents to the counsel who sent them originally, within two

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business days following the completion of the deposition, and shall not retain them in any manner.

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18.

Counsel for the Parties may keep any document or exhibit used during the deposition,

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consistent with the Stipulated Protective Order entered in this case. Counsel for the Parties shall

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return any documents not used during the deposition to the counsel who sent them originally, within

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two business days following the completion of the deposition, or shall destroy them, and shall not

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retain them in any manner.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: September 10, 2020

EISENBAND LAW, P.A

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By:

/s/ Scott Edelsberg
Scott Edelsberg
Attorney for Plaintiff
KELLI ROTH

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DATED: September 10, 2020

BLANK ROME LLP

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By:

/s/ Ana Tagvoryan
Ana Tagvoryan
Harrison Brown
Dustin Moaven
Attorneys for Defendant
PTGMB LLC

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Local Rule 131(e)
I certify that approval of the filing of this document has been obtained from each of the other
counsel-signatories and that each of the other counsel-signatories have authorized submission of this
document on their behalf.

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By: /s/ Harrison Brown
Harrison Brown

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS

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ORDER

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Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that the stipulation
concerning the protocol for conducting remote depositions is entered.

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IT IS SO ORDERED.
Dated:

September 10, 2020
UNITED STATES MAGISTRATE JUDGE

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STIPULATION AND [PROPOSED] ORDER CONCERNING PROTOCOL FOR CONDUCTING REMOTE
DEPOSITIONS