Mosiman v. C & E Excavating, Inc. et al
OPINION AND ORDER GRANTING 47 Plaintiff's construed Rule 26(c) motion for protective order. In the event the parties choose to conduct Plaintiff's deposition remotely, the parties are ORDERED to comply with the specific requirements set forth in this Order. Signed by Magistrate Judge Michael G Gotsch, Sr on 3/23/2021. (bas)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CASE NO. 3:19-CV-00451-DRL-MGG
C & E EXCAVATING, INC., et al.,
OPINION AND ORDER
On November 9, 2020, Plaintiff Darryl Mosiman filed his Motion to Quash a
Notice of Deposition and Subpoena. Through his Motion, Plaintiff asks that his
deposition be conducted remotely rather than in-person. Defendant Christian Labor
Association, Local 10 (“CLA”), filed a response brief in opposition on November 12,
2020, while Defendant C & E Excavating, Inc. (“C & E”) filed nothing in response to the
Motion. Plaintiff’s Motion became ripe on November 20, 2020, without any reply brief
being filed. As discussed below, Plaintiff’s request for a remote deposition is granted.
On May 16, 2019, Plaintiff sued C & E and CLA for violations of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), alleging that Defendants
discriminated against Plaintiff on the basis of his disability. On September 4, 2019, the
undersigned issued a Scheduling Order mandating that all fact and expert discovery be
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completed by February 28, 2021. 1 [DE 37]. That discovery deadline was later extended
to April 28, 2021, allowing for disposition of the instant Motion. [See DE 64].
CLA has served two Notices of Deposition on Plaintiff. The first Notice
scheduled Plaintiff’s deposition for October 9, 2020. However, that deposition was
cancelled on September 29, 2020, because Plaintiff’s father had fallen ill. Through the
Second Notice served on October 28, 2020, CLA re-scheduled Plaintiff’s deposition for
November 13, 2020. On November 5, 2020, Plaintiff sent CLA an email requesting that
deposition be conducted by Zoom. CLA refused leading to the instant Motion.
Plaintiff’s Motion is styled as a motion to quash. However, motions to quash fall
under Federal Rule of Civil Procedure 45, which governs subpoenas to non-parties
only. Therefore, the Court construes Plaintiff’s Motion as a motion for a protective order
under Federal Rule of Civil Procedure 26(c).
Under Federal Rule of Civil Procedure 26(c), this Court “may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. Pro. 26(c). “District courts have broad
discretion in matters relating to discovery.” Patterson v. Avery Dennison Corp., 281 F.3d
676, 681 (7th Cir. 2002). “When exercising its discretion, this Court must balance claims
of prejudice and those of hardship and conduct a careful weighing of the relevant
facts.” Learning Res., Inc. v. Playgo Toys Enters. Ltd., 335 F.R.D. 536, 537 (N.D. Ill. 2020)
In the Scheduling Order, this Court noted that a deposition commenced at least five days before the cutoff date may continue beyond the cut-off date.
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(internal quotation marks and citation omitted). That balancing must reflect
consideration of the totality of circumstances when comparing the “value of the
material sought against the burden of providing it.” Patterson, 281 F.3d at 681. “The
party moving for a protective order must establish that good cause exists for the Court
to exercise its discretion in entering a protective order.” United States v. Ind. Harbor Belt
R. Co., No. 2:15-CV-87-JVB-JEM, 2015 WL 5474653, at *1 (N.D. Ind. Sept. 16, 2015)
Here, Plaintiff seeks to have his deposition conducted by Zoom based on safety
concerns created by the COVID-19 pandemic. Specifically, Plaintiff argues that (1) there
has been an increase in positivity rates for COVID-19 in various geographic areas
relevant to Plaintiff’s deposition; (2) Zoom depositions involving large numbers of
documents can be conducted effectively; and (3) one of Plaintiff’s attorneys is located in
the City of Chicago, which has included the State of Indiana on its travel ban list.
Health concerns related to COVID-19 provide good cause for remote
Courts all around the country have “found that the health concerns created by
the COVID-19 pandemic are a legitimate reason to take a deposition by remote means.”
Valdivia v. Menard Inc., No. 19 CV 50336, 2020 WL 4336060, at *1 (N.D. Ill. July 28, 2020);
see also Sonrai Sys., LLC v. Romano, No. 16 CV 3371, 2020 WL 3960441, at *3 (N.D. Ill. July
13, 2020) (health concerns created by the COVID-19 pandemic create “good cause” for
order requiring remote deposition); United States ex rel. Adams v. Remain at Home Senior
Care, LLC, No. 1:17-CV-01493-JMC, 2021 WL 856876, at *2 (D.S.C. Mar. 8, 2021)
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(“legitimate reasons exist to hold . . . deposition remotely”). Indeed, the nation’s death
toll, which currently exceeds more than five hundred thousand people, evidences the
seriousness of the virus and legitimizes the reasons for remote depositions. See In re
Broiler Chicken Antitrust Litig., No. 1:16-CV-08637, 2020 WL 3469166, at *8 (N.D. Ill. June
25, 2020) (noting the death toll was already over 120,000 as of last summer).
While the threats posed by the virus are serious, they can be mitigated by
minimizing person-to-person contact. See Learning Res., Inc., 335 F.R.D. at 538 (noting
that “the best way to prevent illness is to minimize person-to-person contact”). Remote
depositions minimize person-to-person contact and may mitigate the spread of the
virus. Accordingly, while Plaintiff’s concerns regarding the increase in COVID-19
positivity rates are based on outdated information, 2 an in-person deposition would still
present a greater risk of exposure to the virus than a remote Zoom deposition. Overall,
the twin aims of preventing the spread of the virus and protecting the health and safety
of all involved provide good cause to hold the deposition remotely.
A remote deposition will not unduly prejudice CLA.
CLA alleges that deposing Plaintiff remotely will be unduly prejudicial for the
2 See Indiana COVID-19 Dashboard and Map, IN.GOV, https://www.coronavirus.in.gov/2393.htm (last
visited Mar. 4, 2021) (showing positive cases increasing in November and December of 2020, followed by
a steady decline since January 2021); COVID Data Tracker, CENTER FOR DISEASE CONTROL AND
PREVENTION, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (last visited Mar. 4,
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Large Number of Exhibits
CLA argues that Zoom is impracticable given the large number of exhibits that
will be utilized in Plaintiff’s deposition. While many documents may complicate the
deposition process, courts have suggested that document-intensive depositions can be
effectively conducted using remote means. See, e.g., Rouviere v. DePuy Orthopaedics, Inc.,
471 F. Supp. 3d 571, 575 (S.D.N.Y. 2020) (noting that large numbers of documents are
“not an obstacle to a successful remote videoconference deposition”). In fact, Zoom has
a function for screen sharing documents, which allows for greater efficiency during
depositions. Furthermore, there are other methods that can be utilized to increase the
efficiency of the process. For example, “sending Bates-stamped exhibits to deponents
prior to the depositions” may improve the handling of deposition exhibits. Id. (citation
omitted). Additionally, it should be noted that the number of documents planned for
use in this deposition—432 according to CLA—is not huge. See Helmsetter v. JPMorgan
Chase Bank, N.A., No. 2:19-CV-2532-KHV-TJJ, 2021 WL 949330, at *8 (D. Kan. Mar. 13,
2021) (noting that 589 documents “is not huge”). Accordingly, CLA will not be unduly
prejudiced by the number of the documents involved.
CLA argues that Plaintiff’s credibility cannot be adequately assessed via Zoom.
But this statement contradicts recent precedent. Indeed, “many courts have determined
that remote video depositions provide a ‘sufficient opportunity to evaluate a deponent’s
nonverbal responses, demeanor, and overall credibility.’” See Pursley v. City of Rockford,
No. 18 CV 50040, 2020 WL 6149578, at *2 (N.D. Ill. Oct. 20, 2020) (quoting Learning Res.,
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Inc., 335 F.R.D. at 539). Some courts have even held that deposing a witness by
videoconference provides a better opportunity for observing a witness’ demeanor
because the witness would not need to wear a mask. See, e.g., Rouviere, 471 F. Supp. 3d
at 576. By eliminating the mask, the examiner can observe the full face of the witness,
which may aid in assessing credibility. Accordingly, CLA’s alleged inability to fully
assess Plaintiff’s credibility over Zoom is not unduly prejudicial.
Available Safety Precautions
CLA argues that an in-person deposition can be conducted safely and in
accordance with all local, state, and regional COVID-19 orders. While the Court
recognizes that an in-person deposition can be conducted in accordance with all
relevant orders, the possibility of transmission that may occur by forcing multiple
people into a single room presents a risk the Court cannot ignore. Overall, the health
and safety of all involved overrides the benefits of an in-person deposition, even though
such deposition could be conducted in accordance with state and local orders.
CLA alleges that Plaintiff may be delaying the deposition to harass CLA. In
support of this statement, CLA states that Plaintiff is represented by a union whose
interests are adverse to CLA. CLA’s concerns may not be entirely meritless. Plaintiff has
cancelled his deposition twice. The first deposition—which was cancelled for nonCOVID reasons—was scheduled for October 9, 2020. However, Plaintiff’s objection to
an in-person deposition was not raised until November 5, 2020—nearly four weeks after
the first deposition was to take place. While this delay is suspicious, it is possible that
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Plaintiff’s concerns only arose once the COVID-19 cases began to climb. Accordingly,
while any further delays on the part of Plaintiff will be viewed critically, the Court finds
that the safety concerns override any suspicion of delay.
CLA asserts that an in-person deposition will cost less. Specifically, CLA argues
that a remote deposition will take longer due to the number of documents involved.
While a remote deposition may take longer, the time can be reduced by using the
method described earlier—sending Bates-stamped exhibits to deponents prior to the
deposition. Moreover, delay that could result should Plaintiff, or any participant,
encounter technical difficulties with necessary videoconferencing equipment during the
remote deposition can be minimized with pre-deposition training. Accordingly, the
additional costs associated with a remote deposition can be mitigated such that CLA
will not suffer undue prejudice.
Case Management Deadlines
Lastly, CLA argues that conducting the deposition by Zoom will necessitate
revision of the case deadlines. However, the case deadlines have already been revised
during the pendency of the instant motion. The Court sees no reason why those
deadlines will have to be revised again. Furthermore, the Court can establish
deposition-related deadlines below that will make certain that the deposition is
completed well before the April 28, 2021, discovery deadline.
In sum, the risk of exposure to COVID from an in-person deposition outweighs
any prejudice that CLA may face by conducting Plaintiff’s deposition remotely. As
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such, the Court finds that good cause exists to allow a remote deposition. However, to
ensure the deposition is conducted fairly and efficiently, the Court orders the following.
First, to avoid the potential of witness coaching and to allow for a better
assessment of credibility, the Plaintiff is required to attend the deposition from a room
where he is alone. His attorney may attend remotely from a separate room. The rooms
must be private such that the Plaintiff and his counsel cannot see each other or
otherwise communicate. Likewise, any private chat feature of the software must be
disabled. This removes the threat of improper coaching and allows Plaintiff to be maskless, which will aid CLA in assessing credibility.
Second, Plaintiff’s attorney is responsible for ensuring that Plaintiff can
effectively operate the videoconferencing software. This may require the provision of
training services before the deposition is conducted. All other participants should
similarly be trained so as to minimize any technical delays during the remote
Third, Plaintiff’s deposition must begin no later than April 12, 2021.
Finally, if circumstances have changed and the parties now agree that an inperson deposition is preferable, they can forego the remote deposition and conduct
Plaintiff’s deposition in-person employing all necessary safety precautions such as
masking, social distancing, and disinfecting surfaces.
For the reasons discussed above, the Court GRANTS Plaintiff’s construed Rule
26(c) motion for protective order. [DE 47]. In the event the parties choose to conduct
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Plaintiff’s deposition remotely, the parties are ORDERED to comply with the specific
requirements set forth in this Order.
SO ORDERED this 23rd day of March 2021.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
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