To Zoom or not to Zoom? That is the question, at least when it comes to taking depositions of mass tort plaintiffs. We take no overall position on this issue, having been on both sides of the debate. Situational ethics govern us. Be that as it may, we view developments in this area with interest.
Consider the case of In re Chrysler Pacifica Fire Recall Prod. Liab. Litig., ___ F. Supp.3d. ___, 2024 WL 3048495 (E.D. Mich. June 18, 2024). The plaintiffs in this multidistrict litigation alleged that the defendant sold them minivans that had an undesirable feature of spontaneous combustion. There were at least 50 plaintiffs scattered around the country, with the claims centralized by their JPML in the Eastern District of Michigan. The defendant sought to depose all named plaintiffs, noticing the depositions for locations in Michigan. The plaintiffs then moved for a protective order requiring that the depositions be taken remotely via videoconferencing so that the plaintiffs would be spared the inconvenience of traveling to Michigan.
The plaintiffs based their motion on Federal Rule of Civil Procedure 26(c)(1), which authorizes the court to issue remedial orders that limit discovery upon a showing of "good cause." The magistrate judge determined that the plaintiffs had not made the requisite good cause showing for relief under Rule 26(c). So the defendant won, right? Wrong, Instead, the magistrate judge issued a sua sponte ruling under the purported authority of Rule 26(b)(2)(C), which provides that the court "must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that the discovery sought can be obtained from some other source that is more convenient, less burdensome, or less expensive." On that basis, the magistrate judge ordered that the plaintiffs' depositions be conducted remotely. To address the plaintiffs' concerns about the expense and burden of traveling to attend depositions in Michigan, and the defendant's objection that remote depositions would interfere with its counsel's ability to gauge the demeanor and context of the deponents' responses, the magistrate judge set certain conditions on conducting the depositions, including camera placement proximate to the deponents' faces, and segregation of any plaintiffs' counsel present in a separate room.
The defendant objected to this order, and asked the district court to overturn it. The district court did overturn the order ... mostly.
The defendant argued that the discovery order was unsound because the plaintiffs failed to make a showing of good cause (as the magistrate found), which is necessary to trigger remedial court action, and the alternate ground offered by the magistrate judge on her own to regulate the discovery was not authorized by Rule 26(b)(2)(C). The district court largely agreed with the defendant's reasoning. It held that the magistrate judge's reliance on Rule 26(b)(2)(C), which falls under the general rubric of the scope of discovery, was clearly erroneous. Rule 26(b)(2)(C) provides for orders limiting the "frequency" or "extent" of discovery if the same information reasonably may be obtained from "other sources" that are more convenient or less expensive to produce. The order in this instance had no bearing on either the "frequency" or "extent" of any discovery, since it did not prohibit the taking of any depositions, nor did it limit the number or duration of any depositions to be taken.
Rule 26(b)(2)(C) contemplates a limitation on taking discovery by certain means when the same information sought may be obtained from some "other source" at greater convenience or lesser expense. But no finding was made that the testimony sought from the plaintiffs could be obtained from any "other source," or that information from any such source could be produced more conveniently or cheaply. Instead, the order "specif[ied] terms, including time and place or the allocation of expenses, for the disclosure or discovery" to be taken, by directing all plaintiff depositions to be conducted by Zoom video conferencing. That relief falls squarely within the ambit of a protective order under Rule 26(c), not an order limiting the "extent" or "frequency" of discovery under Rule 26(b)(2)(C). Moreover, granting what amounts to a protective order on the grounds of convenience or expense, a lesser burden, would render Rule 26(c)'s "good cause" requirement a dead letter. The district court held that "[c[onfounding the scope of discovery (Rule 26(b)) with protection against abusive discovery practices (Rule 26(c)), as did the magistrate judge's order, was clear error."
The plaintiffs contended that they established "good cause" by presenting an exhibit identifying the harms that numerous plaintiffs would suffer if required to attend depositions in-person in the Eastern District of Michigan. The plaintiffs' account of their "hardships" consisted almost entirely of generalized assertions that they would suffer inconvenience, expense, or incur unpaid time off from work, and that traveling to Michigan for one to three days to attend a deposition would interfere with routine obligations of their work and family lives. The district court was unimpressed by this vague catalogue of inconveniences. Without more, those inconveniences could not dislodge the "general rule that the proper location of a plaintiff's deposition is in the forum where the litigation is pending." Good old Wright & Miller tells (tell?) us that "[t]he basis for requiring plaintiff to come to the forum for the taking of his or her deposition in most cases is that plaintiff has selected the forum." 8A Wright & Miller, Federal Practice & Procedure § 2112 (3d ed. 2010). So it was here. Many of the plaintiffs who have proposed to act as class representatives elected to file their suits within E.D. Mich., meaning that the expense and burden of personal participation was foreseeable at the outset of their suits. Further, as potential class representatives, an allowance is made under Rule 23 for individual compensation to be paid to the named plaintiffs to offset the burden and expense incurred by representation of absent class members, in the event that the case proceeds on a class basis, and if they secure a recovery for the benefit of the class. In other words, they would be paid for their inconvenience.
It is true that under Rule 30(b)(4), the parties may stipulate or the court may order that a deposition may be taken remotely. We've been in several cases where that has happened. But that authority had no bearing on the question whether good cause for issuance of a protective order had been shown in In re Chrysler Pacifica: "[W]hether the plaintiffs' proposal is reasonable is immaterial to the question whether they have elaborated a sufficiently serious and specific hardship to warrant protective relief from the Court compelling a departure from the general rule that the forum of the litigation is an entirely appropriate location for the taking of party depositions."
To be sure, some district courts have issued orders requiring the taking of depositions by remote means, for instance, where a deponent's serious medical condition makes attendance at an in-person deposition unreasonably risky. At the same time, the defendant in In re Chrysler Pacifica "aptly raised legitimate concerns that remote depositions, despite being a more widely used tool in the post-pandemic era, pose unique disadvantages that examining counsel may struggle to overcome in order to achieve an effective examination."
Clearly, there were competing concerns. What should the court do? Preliminarily, the fact that depositions by remote means may be an economical and appropriate tool in some instances, at least where the parties agree on the means, or where extraordinary circumstances such as the medical infirmity of a deponent make an in-person examination unreasonably risky, "did not mean that good cause has been shown to compel the taking of depositions by remote means across the board for all plaintiffs, based merely on the routine inconvenience and expense that is incident to participation in litigation by any party who chooses to file suit in a forum distant from their residence."
All that being said, the district court held that the record did justify a protective order in two categorical instances.
– First, for the plaintiffs who filed their cases in their home districts, the general rule that sites the deposition "in the forum where the litigation is pending" suggested that their depositions should be taken in their home districts. Their cases were transferred by no actions of their own, and the expense of traveling to a remote district where their case was transferred involuntarily likely was not anticipated at the time of filing. Those plaintiffs have shown good cause that their depositions should be taken in their respective home districts. This ruling is interesting. We defense hacks have started to build up profound skepticism about the benefits of direct filing in MDLs. (For example, there are choice of law implications.) Under this ruling, direct filing plaintiffs will likely be required to travel to the MDL forum for depositions.
– Second, despite the magistrate judge's contrary finding, certain plaintiffs demonstrated real personal hardship (sickness, injury, advanced age — with a realistic risk that "specific harm" could result) to satisfy the good cause requirement for relief under Rule 26(c)(2). Their depositions could take place remotely. Maybe particular cases would require adjustment of that rule, but it is hard to squawk about it too much in the abstract.
This article is presented for informational purposes only and is not intended to constitute legal advice.