Markus v. Aerojet RocketDyne Holdings, Inc. et al

Filing 83

ORDER Regarding Remote Deposition Protocol signed by Magistrate Judge Allison Claire on 11/16/2020. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA ex rel.
BRIAN MARKUS, individually,
Relator,

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CASE NO. 2:15-cv-02245-WBS-AC
[PROPOSED] ORDER REGARDING REMOTE
DEPOSITION PROTOCOL

vs.
AEROJET ROCKETDYNE HOLDINGS,
INC., a corporation and AEROJET
ROCKETDYNE, INC., a corporation,
Defendants.

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL

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As a result of the COVID-19 pandemic, governmental authorities have imposed travel

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restrictions, “stay at home” directives, and other social distancing measures designed to slow the

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communal spread of the disease. These measures, as well as the potential health issues affecting counsel,

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witnesses, court reporters and videographers, may militate in favor of conducting depositions in this

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action remotely. Federal Rule of Civil Procedure 30(b)(4) authorizes this Court to permit the taking of

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depositions by remote means, including by videoconference (“Videoconference Deposition”).

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The following protocol shall apply to all Videoconference Depositions, unless otherwise agreed
to by the parties or ordered by the Court:

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1.

Any Videoconference Deposition taken pursuant to this Court’s Orders must comply

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with the requirements in Fed. R. Civ. P. 30(b)(5). This includes the requirements that, (1) “[u]nless the

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parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated

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under Rule 28,” and (2) that officer must administer the oath or affirmation to the deponent. A

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Videoconference Deposition taken pursuant to this Order will be deemed to have been taken before an

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appropriate officer despite the court reporter not being in the same physical location as the witness, as

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long as the court reporter attends the deposition by the same remote means as the other participants and

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is able to hear and communicate with other attendees. The witness may be sworn in remotely with the

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same effect as an oath administered in person.

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2.

At least one week before the deposition, the party noticing the deposition must identify

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the company that will host and record the remote deposition (the “Remote Deposition Vendor”) and

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contain a general description of how those attending may access the remote connection being utilized

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(e.g., GoToMeeting, Zoom, WebEx). The party noticing the deposition must provide the witness and

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all other attendees with detailed instructions regarding how to participate in the Videoconference

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Deposition at least three business days before the deposition. The parties will meet and confer to arrive

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at a mutually agreeable process should any issues arise.

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3.

To host a remote deposition, a Remote Deposition Vendor must have implemented

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adequate security measures to ensure the confidentiality of the remote deposition (e.g., video and audio

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feeds, exhibits). These security measures must include password protection and tools such as a “virtual

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL

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waiting room” that allows the court reporter to admit only individuals authorized to attend the

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deposition.

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4.

At least 24 hours before the Videoconference Deposition is scheduled to start, counsel,

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the witness, and the Remote Deposition Vendor must conduct a test of the system, equipment, and

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internet connection that will be used to conduct the remote deposition (the “Remote Deposition

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Technology”).

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5.

At the time of the deposition, the witness must advise the court reporter of his or her

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physical location. The witness should endeavor to participate in the deposition from a quiet, well-lit,

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indoor location, while seated in front of a neutral background, and facing the camera being used to

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record the witness. Other than the application required to conduct the deposition, the witness shall not

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have any other applications open or running on the electronic device being used for the deposition.

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6.

The microphones and video feeds for certain attendees (such as the witness, the court

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reporter, the attorney taking the deposition, and the attorney defending the deposition) must remain on

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when the deposition is on the record. Other remote attendees should mute microphones when not

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speaking. The Remote Deposition Technology must be able to show in real-time a list of all persons

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attending the Videoconference Deposition. The participating attorneys may be visible to all other

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participants during the deposition. Only individuals who would be entitled to attend a live deposition in

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this litigation may participate in or observe the remote deposition. All individuals participating in or

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observing any deposition must announce themselves for the record.

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7.

Only the witness’s counsel is permitted to be in the same physical location as the witness

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during a Remote Deposition. No other individuals are permitted to be in the same room as the witness

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during a Remote Deposition. If the witness’s counsel intends to be in the same physical location as the

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witness during a Remote Deposition, they must provide notice to counsel for the noticing party prior to

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the start of the Remote Deposition. If the witness’s counsel or in-house counsel is present in the same

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physical location as the witness during a Remote Deposition, such counsel shall separately log in to the

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remote deposition platform so that all Deposition Participants can both see and hear such counsel, but

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may mute his or her audio if leaving audio on causes feedback or other issues due to proximity to the

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witness’s microphone. If any person enters the room where the witness is located during the deposition,

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL

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other than the witness’s counsel, the witness shall immediately notify the examining attorney of the

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additional persons in the room.

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8.

A videographer employed by the Remote Deposition Vendor will record the witness’s

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deposition testimony by reasonable technological means, including remote video capture/recording. The

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video recording of the deposition may only be suspended during the deposition upon stipulation by

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counsel conducting and defending the deposition. With the exception of the videographer and the court

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reporter, the deposition may not otherwise be recorded electronically without the consent of the parties.

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The videographer must only record (1) the audio and video of the witness’s testimony; (2) the video of

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any documents being displayed or annotated for the witness during the deposition; and (3) the audio of

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the questioning and defending attorneys. The fact that a deposition was noticed to take place remotely,

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and was recorded remotely, will not, by itself, be a sufficient basis for preventing the remote deposition

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from being admitted at trial with the same effect as a deposition video that was recorded in-person.

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9.

Any document that may be used as an exhibit during the deposition shall be transmitted

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by the examining attorney to all Deposition Participants: (i) in sealed envelopes in advance of the

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Remote Deposition; (ii) in real time or in advance electronically through the Remote Deposition

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Vendor’s remote deposition platform, secure file transfer, or email, before or during the course of the

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Remote Deposition; or (iii) some combination of (i) and (ii) or an alternative means agreed to by the

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parties. If documents that may be used as exhibits are transmitted to Deposition Participants in sealed

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envelopes, all Deposition Participants will not open the sealed envelopes or otherwise access such

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documents unless and until specifically requested to do so by the examining attorney. All sealed

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envelopes must be opened on camera. The witness shall not review documents during the deposition,

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other than those marked by the examining attorney as exhibits or otherwise used by the examining

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attorney, without notifying the examining attorney.

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10.

During the deposition examination, no person is permitted to communicate with the

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witness by any means not recorded in the same manner as the deposition itself (e.g., no text or email

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exchanges with the witness). All private chat features on the remote connection being utilized shall be

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disabled. All applications on the witnesses’ device other than the applications being utilized to conduct

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the deposition shall be closed. No witness shall communicate with any person (verbally, in writing, or

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL

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by conduct) while on the record at the deposition in a manner that the examining attorney cannot

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personally observe through the videoconference technology. However, the witness’s counsel may

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communicate with the witness telephonically or by other electronic means (including, but not limited to,

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the use of the remote connection software) during breaks in the deposition, consistent with the Federal

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Rule of Civil Procedure and the Local Rules of the Eastern District of California.

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During breaks in the deposition, the parties may use any breakout room feature provided

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by the Remote Deposition Vendor, which simulates a live breakout room through videoconference.

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

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the Remote Deposition Vendor prior to the deposition and controlled by the Remote Deposition

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Vendor.

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Any pauses, lags, and/or disruptions in technology, including but not limited to

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interruptions in Internet connection, will not result in waiver of objections by any party. If a technical

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issue prevents any person from being able to see or hear one or more of the other persons clearly or to

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access published exhibits, the person encountering such technical issue shall promptly notify the other

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participants.

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13.

Nothing in this Order prevents a party from moving for a protective order under Fed. R.

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Civ. P. 26(c) to require that a given individual deposition proceed in person. Further, nothing in this

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Order precludes counsel for a witness from being in the same room as the witness, if the witness

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consents and such attendance is consistent with social distancing restrictions.

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14.

The Protective Order entered in this action shall apply to any confidential testimony

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and/or documents used as exhibits during the taking of any remote deposition to the same extent it

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would to an in-person deposition.

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15.

The parties may agree on ad hoc modifications to this protocol to accommodate the needs

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of a particular witness or to resolve any issues that arise with respect to a particular deposition. Such

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modifications may be agreed in writing or memorialized on the record at a deposition. In the event that

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any issues in connection with a Deposition Participant or these Remote Deposition Protocols cannot be

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL

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resolved consensually, subject to the Court’s availability, the parties may seek a telephonic hearing with

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this Court on an expedited basis if necessary.

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IT IS SO ORDERED.

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DATED: November 16, 2020

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[PROPOSED] ORDER REGARDING REMOTE DEPOSITION PROTOCOL