Hill, et al v. Jetblue Airways Corporation

Filing 65

STIPULATION and ORDER REGARDING CONDUCTING REMOTE DEPOSITIONS signed by Magistrate Judge Deborah Barnes on 4/20/2021. (Zignago, K.)

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ASHLEY L. SHIVELY (SBN 264912)
HOLLAND & KNIGHT LLP
50 California Street, Suite 2800
San Francisco, California 94111
Telephone [phone]
Facsimile 415.743.6910
E-mail: [e-mail]
Attorneys for Defendant
JETBLUE AIRWAYS CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Holland & Knight LLP

50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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MICHELLE HILL, an individual,
ARIEL EPSTEIN POLLACK, an individual,
Plaintiffs,

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v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,

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Defendant.

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ERICKA BOHNEL, an individual,
ROSA MARTINEZ, an individual,

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Plaintiffs,

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v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,
Defendant.

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No. 2:17-cv-01604-WBS-DB
STIPULATION AND ORDER
REGARDING CONDUCTING REMOTE
DEPOSITIONS

Case No.: 2:18-cv-00081-WBS-DB

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

CASE NO. 2:17-CV-01604-WBS-DB
CASE NO. 2:18-CV-00081-WBS-DB

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Pursuant to Federal Rule of Civil Procedure 29(a), the parties agree to the following protocols
regarding the taking of depositions in these matters:
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Remote Depositions. Given the current health and safety concerns related to COVID-

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19, in-person depositions shall not be noticed, and the procedures set out herein will apply to all

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depositions taken in this matter, unless all parties and the deponent agree, or the Court orders

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otherwise. All depositions shall be conducted using Zoom or equivalent videoconference technology,

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and each deposition may be videotaped. The party noticing the deposition must indicate in any

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deposition notice that the deposition may be videotaped in accordance with this Order. This Order

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shall be attached as Exhibit 1 to any notice of deposition.

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Counsel noticing the deposition shall be responsible for retaining a certified court reporter

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50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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and, if noticed, a videographer, and ensuring that a written transcript and (if noticed) a video record

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of the deposition is taken. The parties shall bear their own costs and fees in obtaining a transcript or

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video record of a deposition. Confidentiality designations of all or portions of remote depositions

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shall be governed by the Protective Order entered in the case.

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Remote depositions shall be used to the same extent as in-person depositions at trial or during

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the litigation of this matter. The fact that a deposition is taken remotely is not a ground for objection

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or exclusion at trial of the transcript or video recording of that deposition. This does not foreclose

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other objections a party may have regarding admissibility.

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2.

Videoconferencing Platform Requirements. The videoconferencing platform used

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for deposition must have adequate security measures to ensure the confidentiality of depositions (e.g.,

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video and audio feeds, exhibits). These security measures include using tools such as a “virtual

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

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deposition. If the videoconferencing platform has the capability of providing private “breakout

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rooms” for participants to use when not on the record, the court reporter hosting the proceedings will

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ensure that private rooms are available to those who request them. Conversations in the breakout

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rooms shall not be recorded. Any chat features of the platform must either be disabled or available

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for all participants to see. Any one-on-one features shall be disabled during the deposition

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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CASE NO. 2:17-CV-01604-WBS-DB
CASE NO. 2:18-CV-00081-WBS-DB

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proceedings. At the request of the deponent or counsel (made at least 36 hours before the deposition

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is schedule to start), noticing counsel, defending counsel, the witness, and any necessary vendor, will

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conduct a test of the platform, equipment and internet connection that will be used for the deposition.

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3.

Notice and Login. The deposing party will share with counsel for the opposing party

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and, if different, with counsel for the deponent (or with the witness directly if unrepresented), the

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name of the court reporting agency and virtual platform to be used at least one week in advance of

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the deposition. Login information will be provided to all parties and the deponent, if not represented,

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no later than one business day prior to the start of the deposition.

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4.

Physical Presence with Deponent.

The deponents will be made available for

Holland & Knight LLP

deposition by video platform. The only person(s) permitted in the same room as the deponent are the

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50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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deponent’s lawyer(s), in which case the deponent and the deponent’s lawyer(s) will each have their

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own computer with camera, and individual or shared audio feeds via microphone or telephone. No

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deponent will be required to be present in the same room as another person if the deponent wishes to

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be deposed alone.

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5.

Conduct of Deponent. At the time of the deposition, the deponent must advise the

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court reporter of his or her physical location. The deponent should endeavor to participate in the

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deposition from a quiet, well-lit, indoor location, while seated in front of a neutral background, and

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facing the camera being used to record the deponent. While on the record, the deponent will not use

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any communication device other than those to facilitate the deposition. While on the record, the

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deponent will not privately confer with anyone between a question and an answer except for the

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purpose of determining the existence and questions of privilege. This provision does not preclude

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counsel from asserting appropriate objections to any question nor does it govern the conduct of

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anyone while not on the record.

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6.

Contact with the Deponent During a Virtual Deposition. The attorney-client

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privilege applies to communications with party-affiliated witnesses. While on the record, however,

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no one will communicate with the deponent outside of the video/audio stream. This includes, but is

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not limited to, instant messaging, text messaging, or any equivalent. The deponent’s counsel may

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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CASE NO. 2:17-CV-01604-WBS-DB
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communicate with the deponent in person, telephonically, or by other electronic means during breaks,

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consistent with Federal Rule of Civil Procedure 30(c)(l). Counsel shall not coach lay witnesses during

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breaks.

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Technology Requirements. All depositions will be stenographically transcribed by a

videographer. The deponent, the deponent’s lawyer, the questioning attorney, and any objecting

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attorney must have a webcam-equipped device (such as a desktop, laptop, or tablet), and a device

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with audio-capabilities or access to a telephone for calling into the deposition and will allow

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themselves to be seen and heard at all times while on the record. Counsel participating in a deposition

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of their own party, party representative, or expert must ensure that the deponent has sufficient

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Holland & Knight LLP

certified court reporter with real-time feed capabilities and may be recorded by a certified

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50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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technology available to participate in the remote deposition, e.g., a webcam, a suitable microphone,

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and adequate bandwidth to sustain the remote deposition. In the case of third-party witnesses, counsel

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noticing the deposition shall be responsible for arranging necessary technology needed for the witness

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to participate at the deposition.

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8.

Videographer Requirements. A videographer, if noticed, will record the deponent’s

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deposition testimony by the best technological means available, including remote video. The

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videographer will record only (1) the audio and video of the deponent’s testimony; (2) the video of

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

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the attorney actively questioning the deponent; and (4) audio of the defending attorney not actively

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questioning the witness (or any other attorney making an objection on the record).

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9.

Identification of Individuals in Attendance. No persons may attend, log in, or listen

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to the deposition proceedings except counsel and appropriate staff, the parties or party

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representatives, the deponent and the deponent’s counsel, the Transportation Security Administration,

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the court reporter and videographer, and any technology vendor assisting with the deposition

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platform. In the event counsel seeks to have an expert, consultant, or intern observe a deposition,

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counsel shall give three business days' notice to opposing party and the TSA, and

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expert/consultant/intern attendance at a deposition is subject to written approval by the TSA. Every

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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person attending the deposition shall be identified on the record at the commencement of the

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deposition or upon later entry permitted by the court reporter. Persons attending by telephone must

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identify themselves by name and by telephone number. Under no circumstances may persons attend

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the deposition virtually in any manner without identifying themselves on the record at the

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commencement of the deposition or when admitted later by the court reporter.

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Conduct by Participants Appearing Virtually. In addition to the provisions set

deponent, court reporter, deposing attorney, and objecting attorney will set their audio connection to

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mute to avoid unintentional noise. Subject to the notice/approval requirement above in Paragraph 9,

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to the extent an expert or consultant attends the deposition, he or she will be in attendance to observe

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forth above, each participant should attend from a quiet location. All attendees other than the

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50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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only and will not participate in or interfere with the deposition in any way. The expert or consultant

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will keep his or her video feed on at all times and will not communicate with any witness, either

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orally or through written or electronic means, while the deposition is in progress. The expert or

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consultant may communicate with counsel while the deposition is in progress. Unless directed

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otherwise by the court reporter and/or videographer, all other attendees may turn video off such that

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their names appear instead of their images (but they may view the video feed of the deposition).

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11.

Exhibits.

The noticing party shall make available to the deponent, all counsel

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attending the deposition, and the court reporter, full and complete copies of all exhibits, either in

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advance of or during the deposition, as exhibits are introduced. The noticing party may transmit

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exhibits electronically, via email, file-sharing link, the platform chat feature, or other reasonable

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means, provided that exhibits shall be accessible such that the deponent and counsel may review the

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entire exhibit on their own and without reliance on the noticing attorney’s “share screen.” For the

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convenience of the deponent and/or court reporter, the noticing party may also elect to provide a hard

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copy of anticipated exhibits to those individuals in advance of the deposition. The deponent and/or

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court reporter may share any preference (through counsel, if applicable) for hard copy or electronic

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exhibits with the noticing party reasonably in advance of the deposition so as to provide time for any

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mailing. At counsel’s election, hard copy exhibits may be sealed until their use is called for during

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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the deposition. Opening the seal of the hard copy exhibit by the deponent or court reporter will be

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done in a fashion visible to the deposition participants on video. Nothing herein shall require a party

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to provide, in advance of a remote deposition, hard copy exhibits to counsel for the parties.
The questioning attorney may choose to display relevant portions of exhibits to the deponent

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via screen share or other reasonable means during the deposition.
12.

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Disruptions. In the event the deponent, the deponent’s lawyer, or the questioning

unavailable, the deposition will be suspended, and the parties will go back on the record only when

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that person’s video and/or audio functionality has been restored. Disruptions due to video streaming,

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audio interruption, or other technical problems shall not be counted against record time or result in

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Holland & Knight LLP

attorney’s video and/or audio feed is interrupted or otherwise becomes hidden from view or

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50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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waiver of objections by any party.
13.

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Consolidated Discovery. The parties have stipulated that certain discovery shall be

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applicable in all three pending matters relating to JetBlue Flight 429. 1 The parties further agree that

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for depositions taken in multiple cases, the maximum time on the record per deponent, absent further

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stipulation, shall be seven hours, regardless of the number of cases pending at the time the deposition

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occurs.
14.

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Court Reporter and Videographer.

The parties stipulate, in accordance with

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Federal Rules of Civil Procedure, that the court reporter and videographer (if noticed) may participate

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in the depositions remotely, and that the depositions will be deemed to have been conducted “before”

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that officer, even though the officer is not physically present with the deponent, so long as that officer

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is able to identify the deponent. The court reporter will at all times have access to the same interface

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as the witness.
15.

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Other Recording.

No participant other than the court-reporting agency and

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videographer (after appropriate notice) may record by video, photograph, or audio any of the

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proceedings. This shall include recording using any form of virtual transmitting device, computer

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Ericka Bohnel and Rosa Martinez v. JetBlue Airways Corporation, E.D. Cal., Case No. 2:18-cv-00081-WBS-DB,
ECF Nos. 16, 17; Michelle Hill and Ariel Pollack v. JetBlue Airways Corporation, E.D. Cal., Case No. 2:17-cv-01604WBS-DB, ECF No. 25; and Rhonda Lynam v. JetBlue Airways Corporation, N.D. Cal., Case No. 3:17-cv-00404-WHO.
This includes all liability and non-medical expert depositions.
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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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CASE NO. 2:17-CV-01604-WBS-DB
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recording device, laptops, camera, and personal device, including smart phones, tablets, iPads,

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Androids, iPhones, Blackberries, or other PDAs. Nothing in this provision prevents or limits the

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taking of notes by those identified on the record.

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This stipulation constitutes the parties’ entire agreement on remote deposition protocol and
will be in effect unless/until modified in writing by the parties or by Court order.

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Holland & Knight LLP

50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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Dated: April 19, 2021
Respectfully submitted,
/s/ Rachel Min Luke (as authorized
on April 16, 2021)
Rachel Min Luke, Pro Hac Vice
FRIEDMAN | RUBIN ®
1109 1st Avenue, Suite 501
Seattle, WA 98101
Tel: [phone]
Fax: [phone]
[e-mail]

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Sarah G. Passeri, Pro Hac Vice
Steven Raffaele, Pro Hac Vice
HOLLAND & KNIGHT LLP
31 West 52nd Street
New York, NY 10019
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Glenn S. Guenard, CA Bar No. 129453
GUENARD & BOZARTH, LLP
8830 Elk Grove Blvd.
Elk Grove, CA 95624
Phone: [phone]
Fax: [phone]
[e-mail]

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/s/ Ashley L. Shively
Ashley Shively (SBN 264912)
HOLLAND & KNIGHT LLP
50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Tel [phone]
[e-mail]

Attorneys for Plaintiff

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Gary L. Halbert, Pro Hac Vice
HOLLAND & KNIGHT LLP
800 17th Street NW, Suite 1100
Washington, D.C. 20006
Tel: [phone]
[e-mail]

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Attorneys for Defendant

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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CASE NO. 2:17-CV-01604-WBS-DB
CASE NO. 2:18-CV-00081-WBS-DB

ORDER

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Pursuant to the parties’ stipulation, IT IS SO ORDERED.
DATED: April 20, 2021

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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Holland & Knight LLP

50 California Street, Suite 2800
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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STIPULATION REGARDING
CONDUCTING REMOTE DEPOSITIONS

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CASE NO. 2:17-CV-01604-WBS-DB
CASE NO. 2:18-CV-00081-WBS-DB