Davis v. Farrell et al
ORDER denying 20 Motion for Video Deposition. As set forth in the attached order, the Defendant's request to have his deposition taken by way of Skype is denied without prejudice to renewal in conformity with this order. If Defendant Farrell wishes to renew his motion, he must do so no later than July 10, 2017. So Ordered by Magistrate Judge Anne Y. Shields on 6/29/2017. (Casalini, Rosalinde)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ATRIL R. DAVIS,
CV 16-4874 (ADS)(AYS)
DANIEL J. FARRELL, et al.,
SHIELDS, Magistrate Judge:
This is a diversity case in which Plaintiff seeks damages associated with a car accident
that occurred in Nassau County, New York. Docket Entry (“DE”) 1-1. Plaintiff filed the action
in New York State Supreme Court, County of Kings, on or about June 22, 2016. On August 31,
2016, Defendants removed this case to this court, choosing this Long Island Courthouse as the
forum for this litigation. DE 1.
On October 6, 2017, this Court held an initial conference. DE 8. That same day, the Court
so ordered the parties’ proposed discovery order, which set February 17, 2017 as the fact
discovery deadline, and June 26, 2017 as the date to complete all discovery. DE 7. On February
27, 2017, the parties submitted a joint status letter stating that depositions were scheduled for
April 19, 2017, and that physical examinations would be held within sixty days of the
depositions. DE 13. On February 28, 2017, the date after receiving the parties’ status letter, this
Court scheduled an in person status conference for March 22, 2017. See Order dated February
28, 2017. Such conference was held; however, Plaintiff failed to appear. DE 14. The parties were
thereafter directed to appear for an in person status conference on June 6, 2017. DE 14.
On April 19, 2017, the Court received a status letter from Defense Counsel, which
advised the Court that the Plaintiff’s deposition had not gone forward, as Plaintiff was out of the
country on the date that the deposition was scheduled to take place. DE 15. In his letter, Defense
Counsel stated that he consented to adjourning Plaintiff’s deposition to May 5, 2017, and
additionally pointed out that Plaintiff adjourned depositions twice and failed to appear for a
status conference. DE 15.
On May 26, 2017, Defense Counsel filed a letter with this Court seeking an adjournment
of the June 6, 2017 conference, and further advised the Court that he was in the process of setting
up a “Skype” (or video conference) deposition for his client. DE 16. Shortly thereafter, Plaintiff
filed a response in opposition to Defendant’s letter in which Plaintiff noted his objection to the
taking of Defendant’s deposition via Skype. DE 17. This Court denied the motion to adjourn
without prejudice for failure to comply with this Court’s rules. See Order dated May 30, 2015. In
that same order, the Court instructed parties to brief their positions as to the taking of
Defendant’s deposition by way of Skype. Id. Both sides have submitted their briefs, and the issue
is now ripe for decision.
Plaintiff argues that Defendant’s request to have Defendant Farrell’s deposition conducted
via Skype should be denied because (1) Farrell has affirmatively chosen the Eastern District of
New York as the forum for this litigation, (2) Farrell has not demonstrated that he will suffer
hardship, and/or that he is physically or financially unable to come to New York, and (3) Farrell
failed to raise the issue in question in a timely manner. DE 19. Plaintiff further argues that he
will be prejudiced if the deposition occurs via video conferencing because he will be unable to
see Farrell’s demeanor or what documents are present during his deposition. DE 19.
Defendant, on the other hand, while conceding that he has chosen the forum, argues that his
motion should be granted because (1) regardless of venue, depositions can be taken via remote
electronic means either by stipulation or by order of the Court, and (2) Plaintiff has failed to
proffer a valid reason to deny Defendant’s motion. DE 20.
The Court first notes that on December 1, 2015, the Federal Rules of Civil Procedure were
amended. In particular, Rule 1 now states that the rules “should be construed and administered
to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.
R. Civ. P. 1. The focus of the changes, as they apply to discovery, is to “improve the
administration of civil justice” and to “to discourage over-use, misuse, and abuse of procedural
tools that increase cost and result in delay.” Comment to 2015 Amendment to Rule 1 of the
Federal Rules of Civil Procedure. The 2015 Amendment to Rule 1 is aimed at making clear that
“[e]ffective advocacy is consistent with -- and indeed depends upon -- cooperative and
proportional use of procedure.” Id.
Although a party noticing a deposition can generally choose the location for the deposition,
“courts presume that a deposition of a non-resident defendant should generally be conducted in
the district where the defendant lives or works.” Robert Smalls Inc. v. Hamilton, 2010 WL
2541177, at *1 (S.D.N.Y. 2010). However, this presumption is based on the belief that a
plaintiff, unlike a defendant, is entitled to select the forum. Id. The presumption is not a rule that
a court must follow, but “‘merely a decision rule that facilitates determination’ when other
relevant factors—for example, cost, convenience, and litigation efficiency—do not favor one
side over the other.” Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 390
(S.D.N.Y. 2011) (quoting Robert Smalls Inc., 2010 WL 2541177, at *1).
Rule 30(b)(4) of the Federal Rules of Civil Procedure states that “[t]he parties may
stipulate—or the court may on motion order—that a deposition be taken by telephone or other
remote means.” Rule 30(b)(4). However, the rule does not articulate the standard for assessing
motions requesting a deposition be conducted remotely via telephone or video conferencing.
Some courts in this District have required a showing of physical or financial hardship before
granting a telephonic deposition, whereas other courts in this District have found that such a
showing is unnecessary. See Stephens v. 1199 SEIU, 2011 WL 2940490, at *1 (E.D.N.Y. 2011)
(collecting cases). Courts in this Circuit “generally apply different standards depending on
whether the party seeking the deposition or the deponent—as an alternative to traveling to the
district in which the action was filed—requests that the deposition occur remotely.”
Gerasimenko, 272 F.R.D. at 387. The ultimate determination, however, is left to the discretion
of the Court after carefully balancing the relevant facts. Stephens, 2011 WL 2940490, at *1
(citing Gerasimenko, 272 F.R.D. at 387).
Deposition of Farrell’s Request to be Deposed Remotely Via Skype
As stated above, the court must weigh the relevant facts to “achieve a balance between
claims of prejudice and those of hardship.” Gerasimenko, 272 F.R.D. at 387 (quoting Normande
v. Grippo, 2002 WL 59427, at *1–2 (S.D.N.Y. 2002)). Relevant factors in this case are
1. Hardship to Mr. Farrell
Although Defendant claims hardship in travelling to New York, he submits no affidavit or
documentary evidence in support of his claim that traveling from his home state of New
Hampshire to New York would create a hardship. Indeed, Farrell does nothing more than assert
that “he does not travel outside of New Hampshire and would need to take 2 days off from his
current job.” DE 20. Without more, such argument is wholly unpersuasive as the complaint
alleges that Farrell has previously traveled outside of New Hampshire. Specifically, the
complaint alleges that at the time of the accident – which forms the basis of Plaintiff’s cause of
action – Farrell was operating a truck in Oyster Bay, Nassau County, NY. Complaint ¶ 23, DE 1.
Thus, the Court finds that Farrell has not demonstrated that traveling to New York would impose
a hardship on him.
2. Prejudice to Plaintiff
Plaintiff contends that he will be prejudiced if Farrell’s deposition is conducted via Skype
because he will see neither Farrell’s demeanor nor the documents presented. Plaintiff’s
argument is thin. He nowhere contends that the documents presented will be voluminous, and the
Court notes that it may be possible to alleviate such concerns if he and opposing counsel
conferred as to what documents will be used. Moreover, Plaintiff will be able to view
Defendant’s demeanor via video conferencing.
3. The Motion is Denied Without Prejudice
At this time, the Court concludes that the circumstances of this case do not support the taking
of Defendant’s deposition via Skype. Defendant has not adequately demonstrated that he would
be subjected to anything more than an inconvenience by traveling to New York for his
deposition. His allegation that he does not travel to New York is unsupported.
Defendant has, however, raised issues that might tip the balance in his favor. Therefore, the
Court denies Defendant’s motion at this time without prejudice to making a clearer submission
as to why he is unable to travel to New York for a deposition. In particular, such submission
should make clear the particular hardship faced by Defendant if he is required to travel to New
York to sit for a deposition. That submission should describe why Defendant is unable to travel
to New York and make clear his work schedule so as to support his claim that traveling to New
York will impose a burden on him.
Ultimately and upon further submission, a showing of a hardship may lead to a ruling that the
deposition to take place via Skype. This is especially true in light of the Federal Rules, which
favor that discovery be carried out efficiently and cost effectively. Fed. R. Civ. P. 1. The Court
notes that in the event that the deposition is directed to be conducted via Skype, this Court will
impose certain conditions. It will be Defendant’s obligation to ensure the quality of the
deposition by (1) setting up the Skype deposition with a service provider in a manner ensuring a
clear and reliable video transmission by both parties, (2) engaging the services of a reliable
videographer to record the deposition, and (3) ensuring that at the time of the deposition an
authorized individual is present in New Hampshire to administer the required oath. Additionally,
this Court will direct that the Defendant bear the burden of the cost for the court reporter and
To be clear, should Defendant wish to renew his motion, he must include an affidavit setting
forth the particular hardships associated with traveling to New York, along with his assurance
that he will comply with the conditions set forth above governing any remotely held deposition.
Such documentation will allow the Court to determine if a remote deposition should be ordered,
and whether that deposition would be any more cost effective than a deposition conducted in
As set forth above, the Defendant’s request to have his deposition taken by way of Skype
is denied without prejudice to renewal in conformity with this order. If Defendant Farrell wishes
to renew his motion, he must do so no later than July 10, 2017.
Dated: Central Islip, New York
June 29, 2017
/s/ Anne Y. Shields
ANNE Y. SHIELDS
United States Magistrate Judge
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