Two recent cases highlight how videoconferencing technology is changing the litigation landscape, both procedurally and substantively.
In S.E.C. v. Princeton Alternative Funding, LLC, 2022 WL 17553306 (D.N.J. December 9, 2022), defendant Princeton Alternative Funding, LLC (“Princeton” or “Defendant”) moved to compel Third-Party Wesley McKnight (“McKnight”), a Dallas, TX resident, to comply with their third-party document and deposition subpoenas. McKnight had not complied with several subpoenas and moved to quash the deposition basis on the basis that to comply would mean attending a deposition more than 100 miles form his residence. Fed. R. Civ. P. Rule 45(c) requires that a subpoena may direct a non-party deposition only if attendance would be within the non-party’s resident state or “within 100 miles of where the person resides, is employed, or regularly transacts business in person[.]”
The Court, while acknowledging that on its face the subpoena was procedurally deficient, granted Princeton’s motion and ordered the deposition to proceed remotely via videoconference provided Princeton modify the subpoena. The evolution of how technology affects the Federal Rules can be seen in the holdings of two states adjacent to New Jersey and split on their neighbor’s reading of Rule 45. See Broumand v. Joseph, 522 F. Supp. 3d 8, 28 (S.D.N.Y. 2021) (finding that compelling virtual testimony does not move the physical location of the witness and holding that Rule 45 centers around the location of the questioner, not the witness, and that “any other reading would render Rule 45(c)’s geographical limitations a nullity”); Frobe v. UPMC St. Margaret, Civ. No. 20-957, 2021 WL 9628848, at *2 (W.D. Pa. July 13, 2021) (permitting a deposition pursuant to a subpoena that would otherwise violate the 100-mile rule to be taken via videoconferencing technology).
A recent California case enhances the scope of FRCP 26 by diminishing the burden of travel and time in depositions. FRCP 26(b)(1) provides:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
In Medina v. County of Los Angeles, et al., 2022 WL 16847547 (C.D. Cal. October 4, 2022), a case brought by two men accusing members of the Los Angeles Police Department of Constitutional violations during a traffic stop. Defendants moved for leave of the court to depose third-party witness Samuel Estrada (“Estrada”), a back-seat passenger in plaintiffs’ car. Plaintiffs opposed the application arguing that travel to Estrada, who was incarcerated about two hours away, was unnecessarily burdensome and therefore violative of FRCP 26 considering the fact his testimony would likely be duplicative of the plaintiffs’. The court disagreed citing the fact that counsel could attend the deposition using videoconference technology.