In light of the pandemic, district courts are finding that parties satisfy Rule 28's requirement for conducting a deposition "before" an officer "so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants." Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411, 415 (S.D. Cal. 2020) (quoting Sinceno v. Riverside Church in City of New York, 2020 WL 1302053, at *1 (S.D.N.Y., Mar. 18, 2020)); see also SAPS, LLC v. EZCare Clinic, Inc., 2020 WL 1923146, at *2 (E.D. La. Apr. 21, 2020) (substantially the same). This Court finds the reasoning in these decisions to be persuasive.
Courts around the country, including our own, have modified procedures to try and combat the spread of COVID-19 while continuing to operate.SAPS, LLC v. EZCare Clinic, Inc., No. CV 19-11229, 2020 WL 1923146, at *2 (E.D. La. Apr. 21, 2020) (citing Amended General Order No. 20-5, (E.D. La. Apr. 3, 2020) (closing the courthouse to the general public); General Order No. 20-4 (E.D. La. Mar. 30, 2020) (implementing rules for the use of video and telephone conferencing for various criminal proceedings); General Order No. 20-2 (E.D. La. Mar. 16, 2020) (continuing all trials until May 1, 2020)). In understanding how the disease is transmitted through social contact "[a] video deposition and remote preparation for [deponents] may be much safer and allow for more flexibility than in-person sessions."
Id. at *3. See, e.g., Leja v. Brousseau Management Co., LLC, No. 19-269, 2020 WL 5352011 (M.D. La. Sept. 4, 2020) (concerns related to the pandemic constitute a legitimate reason to conduct the depositions here by videoconferencing); see also SAPS, LLC v. EZCare Clinic, Inc., No. 19-11229, 2020 WL 1923146 (E.D. La. Apr. 21, 2020) (van Meerveld, M.J.); Thomas v. Wallace, Rush, Schmidt, Inc., No. 16-572, 2020 WL 3247380, at *1 (M.D. La. Mar. 18, 2020). Even though Plaintiff Knuth is not elderly and does not appear to have any relevant health condition, this Court will not require her to travel to New Orleans simply for her deposition.
One court recently explained that it is unnecessary for the officer and the witness to be in the same room as technological advances now allow the witness and the officer to see and hear each other. See SAPS, LLC v. EZCare Clinic, Inc., 2020 WL 1923146, at *1-2 (E.D.La. Apr. 21, 2020). Another recent case clarified that the officer can swear the witness either by telephone or video.
Instead, the Court finds it appropriate to ORDER the Parties to meet and confer to determine whether a protocol for remotely completing the depositions identified in the Court's March 25, 2020 Order is feasible. See SAPS, LLCS v. Ezcare Clinic, Inc., No. 19-11229, 2020 U.S. Dist. LEXIS 69575, at *6 (E.D. La. Apr. 21, 2020) (finding it is not feasible to delay depositions "until some unknown time in the future" during the present pandemic); De Lench v. Archie, No. 18-12549-LTS, 2020 U.S. Dist. LEXIS 58049, at *6 (D. Mass. Apr. 2, 2020) (reminding parties trial date is firm and encouraging "the parties to avail themselves of video technology for meetings, depositions, and other communication and interactions arising in the discovery process" in light of the current pandemic). The Parties shall file a Joint Status Report with the Court by May 8, 2020 regarding the efforts of their meet and confer.
The Court also rejects Sodexo's argument regarding the age of its attorneys and Mr. Bowser, as well as the health concerns associated with COVID-19, as the remote deposition structure eliminates those concerns. See also SAPS, LLCS v. EZCARE CLINIC, INC., 2020 WL 1923146, at *2 (E.D. La., Apr. 21, 2020) (denying plaintiff's request for a protective order and motion to quash a Fed. R. Civ. P. 30(b)(6) deposition notice after noting that the "court will not require parties to appear in person with one another in the midst of the present pandemic. Nor is it feasible to delay the depositions until some unknown time in the future" and, given the June 15, 2020 trial date, finding that "the depositions to be taken in this case will satisfy Rule 28's requirement that they be 'taken before...an officer authorized to administer oaths either by federal law or by the law in the place of examination' so long as that officer attends the deposition via the same remote means (e.g., video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants); Sinceno v. Riverside Church in City of New York, 2020 WL 1302053, at *1 (S.D.N.Y., Mar. 18, 2020) (ordering that "all depositions in this action