The case of the day is Packard v. City of New York (S.D.N.Y. 2018). Charles Meacham sued New York City on behalf of a class, asserting civil rights claims arising out of his arrest in September 2012 during the Occupy Wall Street protests. At the time, he lived in New York, but now he lives in Taiwan. The City sought to take his deposition in New York, but Meacham wanted the deposition to be taken by videoconference in Taiwan. The parties filed cross-motions.
Ordinarily, if you file a lawsuit in a given venue, you have to show up in the venue to give a deposition. That’s only fair. Here, Meacham showed that the cost of travel would be unduly burdensome, and the court authorized the deposition to take place by videoconference. The judge noted that the witness’s demeanor would be visible to the City’s lawyers on the videoconference. There were two noteworthy features. First, the judge held that Meacham would have to pay the difference in cost between the videoconferenced deposition and the deposition had it proceeded in New York. In other words, the City would have to pay the cost of the stenographer, but Meacham would have to pay the cost of the videoconferencing, the consular fees if the deposition was to be taken before a consular officer, etc. It is unclear what the notice of deposition said about the means of recording the deposition, but presumably the City was only intending to record the testimony stenographically. (If the City had intended all along to use videographic recording, too, then it wouldn’t make sense to shift the cost of the videographer to Meacham).
Second, the judge usefully outlined some of the procedural possibilities for the parties, noting in particular the options available for selecting an officer before whom the deposition would be taken. But there are some other issues, mainly technological, that the parties themselves have to work out. From the City’s perspective, the main one is exhibits. There are technologies available that allow the City’s lawyer to display exhibits for the witness, make marks on exhibits as needed, and to display the exhibits and the witness simultaneously for the (eventual) jury. From Meacham’s perspective, there’s an issue about where his counsel will be sitting during the deposition. Barring extraordinary circumstances, I would never want my client to be testifying without being able to sit right next to him or to her. If that’s how Meacham’s lawyer feels, then perhaps there are no real cost savings, since the lawyer would have to travel to Taiwan!