Judge G.R. Smith issued a great reminder that lawyers must “stop and think” when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is “an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011).
The case at issue requiring lawyers to “stop and think” involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia.
The Court, on its own, brought up the use of Skype to conduct the depositions. The Court explained that “Skype is now used to facilitate many a human interaction,” including parent-child visitation orders, marriages and depositions where travel cost is prohibitive. Hernandez, at *8-9, citing Young v. Young, 2013 Ark. App. 707 (Ark App. 2013), Tshiani v. Tshiani, 208 Md. App. 43, 56 A.3d 311, 321-22 (Md. App. 2012) and Yu Hui Chen v. Chen Li Zhi, 109 A.D.3d 815, 971 N.Y.S.2d 139, 140 (N.Y.A.D. Sept. 11, 2013).
The Court directed the parties to meet and confer over Skype-based depositions with translation and recordation, or the Plaintiffs contribute $1,000 to the Defendants for conducting the depositions in Mexico. Hernandez, at *9.
Bow Tie Thoughts
I am thrilled judges are ordering parties to look at using video depositions to reduce travel costs. However, I personally would not use Skype for a deposition. This is not because I do not use Skype, but would prefer a remote video deposition service instead. These services have applications designed specifically for remote depositions. They also understand the requirements for remote court reporters. Many states often require a court reporter to be with the witness for being properly sworn in. Moreover, an international setting likely would require the deponents to go to the US Embassy to be deposed.
I agree with Judge Smith’s logic, reading of the rules and solution. I would totally give him a high five for not being afraid to solve problems with technology. I just would use a different videoconference tool.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.