Supreme Court, Westchester County, August 17, 2020

Hecht, Kleeger & Damashek, P.C., New York City, for Aaliyah Fields, plaintiff.

German Rubenstein, LLP, New York City, for Tyree Smith, plaintiff.

Jeffrey Samel & Partners, New York City, for MTA Bus Company and others, defendants.

This action arises from personal injuries allegedly sustained as a result of a motorist accident that occurred on November 25, 2017. Plaintiffs commenced this action on November 26, 2018, by filing a summons and verified complaint. Issue was joined by the defendants' filing of an answer on March 14, 2019, followed by an amended answer filed on April 11, 2019, and a second amended answer filed on June 6, 2019. A preliminary conference stipulation and order was filed on December 19, 2019. Therein, counsel stipulated that the plaintiffs' depositions shall be held by April 1, 2020, and defendants' deposition shall be held on April 2, 2020.^[FN1]

A compliance conference was held on March 11, 2020. The compliance conference order dated March 12, 2020, included the following directives:^[FN2]

i. The deposition of plaintiff (Fields) shall be held on May 11, 2020;

ii. The deposition of plaintiff (Smith) shall be held on May 12, 2020;

iii. The deposition of defendants shall be held on May 21, 2020.

Plaintiffs filed the instant motion pursuant to CPLR 3124 to compel all parties to appear for depositions, and related relief as this court may deem just and proper. Counsel contends the plaintiffs were ready, willing, and able to appear for remote depositions on the dates designated in the compliance order; however, defendants refused to proceed with plaintiffs' depositions citing a lack of medical records. To that end, plaintiffs contend that authorizations were previously provided to defense counsel on or about November 20, 2019;^[FN3] and plaintiffs also forwarded courtesy copies of all medical records in its possession. Counsel further contends that on May 15th, plaintiffs' counsel again agreed to provide courtesy copies of all medical records and, in the event the providers' records revealed any information that differs from those courtesy copies, counsel agreed to produce plaintiffs for a further deposition to address any such discrepancies.

Defendants filed opposition to the instant motion. Counsel states there is "no opposition to conducting depositions in the {**69 Misc 3d at 634}above-referenced matter"; however, at issue is "the timing and location of the depositions, held amid the COVID-19 pandemic." Counsel argues that the Governor's state of emergency order issued on March 7, 2020, made conducting depositions of plaintiffs on May 11 and 12 an impossibility. Defendants take the position that they intend to "personally conduct" the depositions of plaintiffs; however, defense counsel is unable to do so since its offices are located in New York City, which is still in a limited phase of reopening which does not permit such in-person operations at this time.

Defense counsel further argues that the court lacks the authority to compel remote depositions in lieu of in-person depositions, noting that CPLR 3113 (d) provides that "[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically" (emphasis added). Curiously, defense counsel states that defendant "would consider" stipulating to certain alternatives to in-person depositions[*2]"[s]hould Plaintiff wish to stipulate to limit the amount of damages obtainable."^[FN4]

Third, counsel argues that defendants have the right to in-person depositions which provide counsel with the opportunity to meet the plaintiffs to assess their demeanor and credibility during their deposition testimony. Stated differently, it is alleged that defendants would be prejudiced if the court were to compel remote depositions of the plaintiffs.

Lastly, counsel objects to producing "essential personnel" from the public authority for depositions "until the State of Emergency normalizes." In that regard, counsel notes that bus operators are considered necessary personnel who have returned to work. The bus operator(s) should not be compelled to appear for a deposition in lieu of reporting to perform the essential work duties which are now imperative in light of "increased absenteeism, due to illness, and/or forced quarantine."

CPLR 3101 (a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by{**69 Misc 3d at 635} sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Matter of Kapon v Koch, 23 NY3d 32 [2014]; Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]). Although the discovery provisions of the CPLR are to be liberally construed, "a party does not have the right to uncontrolled and unfettered disclosure" (Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410 [2d Dept 2009] [internal quotation marks omitted]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2d Dept 2007]). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Foster v Herbert Slepoy Corp., 74 AD3d at 1140). The trial court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (see Auerbach v Klein, 30 AD3d 451 [2d Dept 2006]; Feeley v Midas Props., 168 AD2d 416 [2d Dept 1990]). If the information sought is sufficiently related to the issues in litigation so as to make the effort to obtain it in preparation for trial reasonable, then discovery should be permitted (see Allen v Crowell-Collier Publ. Co., 21 NY2d at 406-407; Matter of Beryl, 118 AD2d 705 [2d Dept 1986]). It is immaterial that the information sought may not be admissible at trial as "pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof" (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]; Polygram Holding, Inc. v Cafaro, 42 AD3d 339 [1st Dept 2007]).

As a preliminary matter, the court notes that the defendants have not raised any objection to proceeding with depositions on the grounds that they await medical records. Instead, defense counsel's arguments rest on two general propositions: (i) defendants intend to conduct in-person depositions at such time as "the State of Emergency normalizes"; and (ii) there is a lack of legal authority for the court to compel remote depositions in lieu of in-person [*3]depositions. Both arguments are rejected based on the foregoing legal authority as herein stated.

It is settled law in New York that the court's discretion to compel a virtual deposition can be invoked upon a showing of "undue hardship" (see Yu Hui Chen v Chen Li Zhi, 81 AD3d 818 [2d Dept 2011] [deposition by electronic means may be{**69 Misc 3d at 636} ordered when undue hardship is established]; Rogovin v Rogovin, 3 AD3d 352 [1st Dept 2004] [video deposition ordered where witness' appearance in New York would cause hardship]; Matter of Singh, 22 Misc 3d 288, 290 [Sur Ct, Bronx County 2008] [remote depositions permissible if undue hardship established]). In its discretion, the court can also order that the parties travel to a witness located remotely, or permit interrogatories in lieu of a deposition (see Hoffman v Kraus, 260 AD2d 435 [2d Dept 1999] [due to "undue hardship," the examination of the defendant may either be done in person in Hungary or by written question]; Fielding v Klein Dept. Stores, 44 AD2d 668 [1st Dept 1974] [to avoid undue hardship, deposition of the defendant shall either take place in California, or in lieu thereof, by written questions]).

As noted in this court's recent determinations related to remote depositions during the COVID-19 pandemic,^[FN5] a majority of recent cases addressing COVID-19 issues have denied a party's attempt to insist upon conducting in-person depositions. The cases reject arguments commonly made, including that in-person examinations are needed to assess a witness' demeanor as alleged by defense counsel in the present matter.

By way of example, in Rouviere v Depuy Orthopaedics, Inc. (2020 WL 3967665, 2020 US Dist LEXIS 122184 [SD NY, July 11, 2020, 1:18-cv-04814 (LJL) (SDA)]), the plaintiffs filed a motion seeking to compel the defendant's representative to appear for a deposition in-person or to extend the deadline to conduct the deposition. The plaintiffs claimed that they needed an in-person deposition because the deposition will be "document intensive" and that they needed to observe the demeanor of the witness. The court rejected these arguments. Initially, the court explained that since the advent of COVID-19, conducting court proceedings and depositions remotely has become the " 'new normal' " and that the technology used for conducting depositions by video has improved significantly over time. The court explained that the COVID-19 virus presents significant health risks to everyone and that the recommended social distancing minimum of six feet is often difficult to obtain in a deposition setting. And, significantly, even if social distancing could be obtained, given the length of depositions and given that they are held indoors, even social distancing{**69 Misc 3d at 637} " 'does not guarantee a safe deposition environment' " (2020 WL 3967665, *2-3, 2020 US Dist LEXIS 122184, *5-9).

In Reynard v Washburn Univ. of Topeka (2020 WL 3791876, 2020 US Dist LEXIS 118631 [D Kan, July 7, 2020, Case No. 19-4012-HLT-TJJ]) the plaintiff sought to have her deposition conducted by remote video. The defendant opposed, arguing that it needed an in-person deposition since the plaintiff was a significant person with a significant damages claim and that it would be impossible to conduct the deposition remotely given the large number of deposition exhibits. The defendant also argued that the threat of COVID-19 had been reduced, noting that Kansas had just entered phase 3 of its reopening plan. The court rejected these arguments. The court noted that the mere fact that Kansas had entered phase 3 did not lessen the health risk posed by COVID-19. The court [*4]explained that depositions by video have become the "new normal." The court further explained how conducting the deposition remotely actually enhances the defendant's counsel's ability to observe the plaintiff's demeanor since the plaintiff would not have to wear a mask. In addition, the court found that the mere possibility that there would be technical problems if the deposition was held remotely was not a basis to hold the deposition in-person (see Joffe v King & Spalding LLP, 2020 WL 3453452, 2020 US Dist LEXIS 111188 [SD NY, June 24, 2020, 17-CV-3392 (VEC)]; Gould Elecs. Inc. v Livingston County Rd. Commn., 2020 WL 3717792, 2020 US Dist LEXIS 118236 [ED Mich, June 30, 2020, Case No. 17-11130] [holding that a party's credibility can undeniably be assessed via video testimony]; In re Broiler Chicken Antitrust Litig., 2020 WL 3469166, 2020 US Dist LEXIS 111420 [ND Ill, June 25, 2020, Case No. 1:16-cv-08637] [holding that technological problems which can arise during in-person as well as remote depositions is not a reason to prevent remote depositions from occurring]; Lundquist v First Natl. Ins. Co. of Am., 2020 WL 3266225, *2, 2020 US Dist LEXIS 106124, *5 [WD Wash, June 17, 2020, Case No. 18-5301 RJB] [" 'While the Court is sympathetic to the challenges to the legal community during this pandemic, attorneys and litigants are adapting to new ways to practice law, including preparing for and conducting depositions remotely' "]).

New York's trial level courts are in accord with the above rulings and appear to conclude that virtual depositions do not cause undue hardship in light of the technology currently available and the serious health risks posed by the COVID-19 virus{**69 Misc 3d at 638} (see Johnson v Time Warner Cable New York City, LLC, 2020 NY Slip Op 31592[U], *3 [Sup Ct, NY County 2020, Kalish, J.] [remote depositions ordered where the defendant refused to proceed remotely, with the court noting, "(t)o delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable"]; Arner v Derf Cab Corp., 2020 NY Slip Op 32906[U] [Sup Ct, NY County 2020, Silvera, J.] [defendants ordered to appear for virtual depositions]; Ai Bee Lim v Cui, 2020 NY Slip Op 32930[U] [Sup Ct, Queens County 2020, O'Donoghue, J.] [defendant required to appear at a videotape deposition within 45 days in a medical malpractice case]; Macdonald v Pantony, 2020 NY Slip Op 32744[U] [Sup Ct, Nassau County 2020, McCormack, J.] [remote depositions ordered unless all parties agree to face to face depositions with the appropriate social distancing]; Stern v New York & Presbyt. Hosp., 2020 NY Slip Op 32929[U] [Sup Ct, Kings County 2020, Edwards, J.] [virtual depositions ordered in a medical malpractice case]). Under the circumstances presented, this court has likewise concluded that virtual depositions do not cause undue hardship and provide the benefit of added protection from possible exposure to the COVID-19 virus (see Chase-Morris v Tubby, 69 Misc 3d 349 [Sup Ct, Westchester County, Aug. 3, 2020, Lefkowitz, J.]; see also Thompson v Stein, 2020 NY Slip Op 32883[U] [Sup Ct, Westchester County 2020, Lefkowitz, J.]).

In light of the foregoing legal authority, plaintiffs' motion to compel the depositions of all parties is granted. All depositions shall be held by videoconference. As in the cases cited above, this court is of the opinion that in-person depositions would impose undue hardship on the parties at this time due to the COVID-19 pandemic. In addition, the parties' interests are sufficiently protected through the use of video depositions. Credibility can be determined without the obstruction of the witness' face through the use of a mask and documents may be presented and examined during the examinations with relative ease. Perhaps most importantly, video depositions provide the benefit of added protection from possible exposure to the COVID-19 virus. Finally, as it relates to the depositions of defendants, defense counsel failed to move for nor assert sufficient grounds for a protective order (see generally CPLR 3103 [a]). Notwithstanding, the court certainly recognizes the importance of the duties of bus operator(s) [*5]in providing public transportation; however, there is no indication that plaintiffs{**69 Misc 3d at 639} are unable or unwilling to make appropriate considerations for any such deponent's work schedule and overall availability when scheduling remote depositions.

All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court, notwithstanding the specific absence of reference thereto.

Accordingly, it is ordered that the plaintiffs' motion to compel the depositions of all parties is granted. Party depositions shall be completed by September 21, 2020. It is further ordered that in light of the continuing health risk posed by the COVID-19 pandemic, all depositions shall be held by videoconference. All counsel shall make reasonable accommodations in consideration of the work schedule and availability of any essential worker who is a deponent in this matter; and it is further ordered that due to the COVID-19 health emergency, the parties are directed to use their best efforts to proceed with this action in accordance with the Administrative Order of the Chief Administrative Judge issued on June 22, 2020 (AO/129/20).