This is a medical malpractice action within which the controversy that has developed is whether a properly noticed deposition upon oral questions for the testimony of Usha Saha, MD [hereinafter Saha], where the parties have agreed to a continuation after a number of hours of questioning, can thereafter be reconvened as a video deposition. The initial oral deposition notice is dated November 27, 2012 and the Saha deposition commenced on May 15, 2015 only to be adjourned by consent approximately 4 ½ hours later. Depositions "shall be taken continuously...unless the court otherwise orders or the witness and parties present otherwise agree." CPLR § 3113(b) authorizes this and the parties have "otherwise agree[d]".

During the hiatus before continuation of this disclosure the questioning party served a notice pursuant to 22 NYCRR 202.15 (c) on August 6, 2015 scheduling the same for August 25, 2015. The accompanying cover letter reiterated this was to be a videotaped deposition. Although there is no explanation for delays in re-scheduling after August, the proceedings were finally about to proceed on December 7, 2015 when Saha and counsel appeared at the deposition site and there was an objection to proceeding by video. Defense counsel does not contest the authenticity of the August 6, 2015 22 NYCRR 202.15 (c) notice and candidly admits he did not [*2]take note of it until the day of the proceeding. The video deposition did not proceed and Saha now moves for a protective order pursuant to CPLR § 3103. There is a cross motion to compel the process as well as an application for costs in the nature of the actual expenses related to that which did not occur.

Section 3113(b) of the Civil Practice Law and Rules allows for testimony to "be recorded by stenographic or other means[.]" Section 202.15 of the Uniform Rules for the New York State Trial Courts allows for depositions to be recorded by means of visual electronic recording. "CPLR 3113(b) and 22 NYCRR 202.12 and 202.15 freely permit a party taking a deposition to record it on videotape."Jones v. Maples, 257 AD2d 53, 55-56, (1st Dep't 1999). Additionally, under Section 3103(a) of the CPLR the Court has wide discretion to preclude or appropriately limit the use of any particular disclosure advice. Jones, 257 AD2d at 56. Before precluding use of a discovery device, however, the Court "should consider whether the device is of particular value under the circumstances." Id.

Although the circumstances claimed by the proponent of the video are that Saha was difficult to understand careful review of the deposition transcript does not reflect this as, tellingly, no question went unanswered.^[FN1] Thus, while it is difficult for the Court to imagine the "particular value" of how a video record will alleviate one's difficulty in understanding the witness there may very well be value in having an audio recording. CPLR 3113 (b) provides that testimony shall be recorded by stenographic or "other means" and an audio recording, prepared at the expense of a party that wishes to have it, is an additional and reasonable means of assuring that the deposition transcript is as clear as it is accurate.

The Court recognizes that videotaped depositions are a superior means of presenting testimony of absent witnesses but in this posture the need to preserve Saha's testimony is not at issue since, at oral argument, Saha's counsel indicated an unequivocal intent that the defendant would be present throughout the trial. Under such circumstances as presented the unilateral conversion of an already commenced oral deposition into a video deposition, while not prohibited by any rule is, without reasons more compelling than are given here, unnecessary. A protective order is granted although a simultaneous audio recording shall be permitted.

Also before the Court is a two pronged cross motion within which the plaintiffs seek to compel the video deposition as well as an application for the costs incurred attendant to the aborted proceeding. While the former relief has been denied herein, the latter is granted. The Court cannot enthusiastically embrace the reasons offered for failure to seek a protective order during the several months the § 202.15 notice went unabsorbed until the date of the agreed continuation. With defense counsel having essentially attended to this case as if on cruise-control they deprived themselves of the opportunity to seek a timely protective order before schedules were made, travel undertaken, and sums were expended toward such an unproductive end. This warrants an award of the actual costs incurred by plaintiffs' counsel in the amount of $1,143.75 together with costs on this motion.

The within constitutes the Decision and Order of the Court and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order, Notice of Motion dated December 15, 2015, Notice of Cross Motion dated December 22, 2015 have been filed by the Court together with the submissions enumerated below. Counsel for defendant Saha is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR 5513.