Opinion
Civil Action No. 19-cv-02827-RM-KMT
2020-04-13
Gloria BROOKS, Plaintiff, v. PIKES PEAK HOSPICE and Palliative Care, Inc., a Colorado corporation, Defendant.
Donna E. Dell'Olio, Cornish & Dell'Olio, P.C., Colorado Springs, CO, for Plaintiff. Heather Fox Vickles, Raymond Myles Deeny, Sherman & Howard LLC, Denver, CO, for Defendant Pikes Peak Hospice and Palliative Care, Inc. Heather Fox Vickles, Sherman & Howard LLC, Denver, CO, for Defendant Comfort Bridge.
Donna E. Dell'Olio, Cornish & Dell'Olio, P.C., Colorado Springs, CO, for Plaintiff.
Heather Fox Vickles, Raymond Myles Deeny, Sherman & Howard LLC, Denver, CO, for Defendant Pikes Peak Hospice and Palliative Care, Inc.
Heather Fox Vickles, Sherman & Howard LLC, Denver, CO, for Defendant Comfort Bridge.
ORDER
KATHLEEN M. TAFOYA, United States Magistrate Judge
This matter is before the court on "Plaintiff's Motion for Protective Order Pursuant to Fed. R. Civ. P. 26(c) Seeking Leave to Proceed with Plaintiff's Deposition by Video Conference" [Doc. No. 47.] Defendant objects to the motion but has not had an opportunity to present argument to the court on its objections. D.C.COLO.LCivR 7.1(d), however, provides. "[n]othing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed." The court cannot conceive of any argument which would persuade this court not to grant the motion.
The parties have agreed upon a date for the deposition of the Plaintiff. As was typical of law practice "before pandemic," the deposition was set to be in person on May 12, 2020 and Plaintiff was to appear in the law offices of Defendant's counsel in Denver, Colorado. But the world is now "during pandemic" and, hopefully, is about to gradually enter the "after pandemic" phase. May 2020 simply does not look the same as February 2020. "The times, they are a-changin’."
Bob Dylan, circa 1964.
On March 13, 2020, Chief Judge Philip A. Brimmer entered the first of what are, to date, five General Orders that change now, and possibly forever to one degree or another, the way courts do business. Federal and state courts have entered similar orders around the United States. Not only courts, but lawyers and their clients are going to be forced to re-think how the business of litigation is conducted in our world-wide economy. General Order 2020-1 imposed Visitor Restrictions on persons entering our courthouses. General Order 2020-3 acknowledged the Colorado state of emergency and the issuance of a state-wide "Stay at Home" order that has now been extended to April 26, 2020. General Order 2020-4 made findings with respect to criminal proceedings and the types of proceedings that can be conducted via video or audio teleconference in order to protect the human beings who must participate in such hearings.
This court's General Orders are posted on its public website http://www.cod.uscourts.gov/CourtOperations/COVID-19Guidance.aspx.
The court has instituted elaborate protocols for handling proceedings before judges involving multiple courtrooms and video conferencing where all participants appear remotely including the judge, the courtroom deputy, an interpreter, a court reporter, counsel for each side, and clients. Chief Judge Brimmer has, himself, conducted video hearings with great success in spite of the many participants and variety of video devices connecting to various group conference platforms. That such measures are necessary to protect the health and safety of the persons involved in litigation before the court should be self-evident at this time.
Clearly, some of the distancing practices now in vogue will change as the world gradually comes alive again. There is every reason to hope, however, that some of the lessons learned during the pandemic will invoke changes of practice which, in addition to being healthy habits, also make economic and practical sense in the post-pandemic or even post-COVID-19-vaccine world. One of those current practices that may need re-evaluation is the practice of flying attorneys, clients, and deponents around the country or the world just to take a deposition. While technology is not always perfect, all one has to do is attend one Zoom happy hour with friends or group Skype session with family on a holiday to understand that we now, through technology, can have many of the benefits of in-person communication while dispensing with the touching and close proximity that puts everyone at risk in light of a raging, infectious, lethal disease. Are there logistical considerations unique to the deposition setting that must be addressed? Of course. For instance, in a deposition, a deponent might need to be confronted with a document or other tangible object. But challenges of this sort are being resolved daily in all kinds of different venues. One has only to look at the San Francisco Conservatory of Music professor who is finishing the semester classes with his students having dispersed to homes around the world by using a program called Loom that lets him combine a webcam of himself at his home computer together with whatever is on his home computer screen, including using an iPad that works more or less like a class whiteboard mirrored onto his main computer monitor for Loom videos. Combined with Zoom Higher Education for real-time interaction and Zoom's ability to send files through the "Chat" feature, Google Drive for assignments and worksheets, and students’ ubiquitous cellphones (for recording themselves doing solfege exercises), Professor Foglesong is able to provide high level music education remotely, even considering California's strict isolation protocols. There are challenges to any new applications and any new way of doing things. Human beings are resistant to change because change takes time to master. For a while depositions by video conferencing will likely be awkward and may take more effort. The internet will fail, and the computer will have to re-boot. Someone won't have their camera on. There will be issues. But this case is one where the benefits far outweigh the deficits.
Thanks to Scott L. Foglesong, Chair, Music Theory and Musicianship; Technology and Applied Composition, SFCM. Professor Foglesong, in addition to also being a professor in the Fall Freshman Program at University of California Berkeley and a speaker for the San Francisco Symphony and other accomplishments too lengthy to be acknowledged in full here, is also this court's brother.
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First, there is the pandemic and the undisputed fact that both the Plaintiff and her attorney are in what is considered to be high risk categories should they contract COVID-19. But here the added factor is that Plaintiff has moved from the state of Colorado and now lives in Kansas so would be required to travel to Denver, stay in a hotel (if one is open), eat at restaurants (if any are open), use public restrooms, and obtain gas and other supplies at public outlets should she be required to be physically present at a deposition. This is not only dangerous today, but also in any foreseeable future. Such efforts are also expensive and drive up the costs of litigation. In this case the litigants have hired experienced legal counsel who understand the law and the case and practice in the federal court system and therefore can be expected to deal competently with the technology eventually.
Weighing against all these benefits of proceeding with video conferencing technology for the deposition is an antiquated decision, likely made some many years ago, that video conferencing was inferior to sitting face-to-face (or 6 foot to 6 foot to 6 foot to 6 foot to 6 foot proximity) with the deponent, her counsel, a company representative for the defendant and its counsel, and the court reporter in a room that now needs to be a small assembly space that might even need amplification, rather than a small conference room in a normal law office. Such outmoded prejudices, based not on reality but rather on anecdotal and perhaps dated experience with technology, simply cannot be tolerated in the current climate, regardless of what the post-pandemic future may look like eventually.
Wherefore, it is ORDERED
"Plaintiff's Motion for Protective Order Pursuant to Fed. R. Civ. P. 26(c) Seeking Leave to Proceed with Plaintiff's Deposition by Video Conference" [Doc. No. 47] is GRANTED.