The U.S. District Court N.D. Illinois dealt with a request by counsel for a protective order requiring that the expert’s deposition be conducted remotely due to the COVID pandemic.
The court granted the protective order, rejecting the request for an in-person deposition.
The court stated:
The general concern over the risks posed by COVID-19 are heightened in this case for a number of reasons. First, lead counsel for Geotab who would travel to either Chicago or North Carolina for the experts’ in-person depositions has regular contact with immediate family members in high-risk categories if exposed to COVID-19. Second, whether traveling to Chicago or North Carolina, Geotab’s counsel would have to self-quarantine for fourteen days upon his return to Massachusetts. Third, as Geotab points out, North Carolina, where the experts reside and would be traveling from (or where counsel might travel to) has recently experienced a surge in COVID-19 cases and hospitalizations. North Carolina’s health secretary stated just last week that she “continue[s] to be concerned that North Carolina’s key COVID-19 metrics are moving in the wrong direction … Daily case counts are up and the percent of tests returning positive has stayed high.” https://www.newsobserver.com/news/coronavirus/article244096432.html (last visited July 9, 2020); see also “North Carolina Gov. Roy Cooper issues order requiring masks, delays phase 3 of reopening plan,” Charlotte Business Journal, June 24, 2020, available at https://www.bizjournals.com/charlotte/news/2020/06/24/nc-requires-face-masks-delays-reopening.html (last visited July 9, 2020).
Contrary to Sonrai’s assertions, the Court does not agree that Geotab’s concerns can be alleviated by simply allowing certain attorneys to appear remotely while the experts, Sonrai’s counsel, and other local counsel appear in-person in Chicago. Since briefing the motion, Chicago has issued an Emergency Travel Order that requires individuals entering or returning to Chicago from states experiencing a surge in new COVID-19 cases, including North Carolina, to quarantine for fourteen days upon arrival. See https://www.chicago.gov/city/en/sites/covid-19/home/emergency-travel-order.html (last visited July 9, 2020). Thus, Geotab’s experts would have to travel to Chicago and self-quarantine for fourteen days before sitting for a deposition. Similarly, even if Sonrai’s counsel traveled to North Carolina for the depositions, they would be required to self-quarantine for fourteen days upon returning to Chicago. This new travel restriction renders Sonrai’s proposal impracticable.
For these reasons, the Court finds that the health concerns created by the COVID-19 pandemic create “good cause” for the entry of an order requiring that Geotab’s experts’ depositions take place by remote videoconference under the circumstances in this case. See, e.g., In re Broiler Chicken Antitrust Litig., 2020 WL 3469166, at *8 (remote depositions appropriate “to protect the safety and health of witnesses, counsel, court reporters, videographers, and other persons, and to move this case through the pretrial process at an acceptable pace during a time when in-person depositions may present risks to the health and safety of people participating in them.”); Learning Res., 2020 WL 3250723, at *2-3 (finding that COVID-19 related health concerns provided “good cause” for a remote video deposition); In re RFC & ResCap Liquidating Tr. Action, No. 013CV3451SRNHB, 2020 WL 1280931, at *3 (D.Minn. Mar. 13, 2020) (“[u]nder the circumstances, COVID-19’s unexpected nature, rapid spread, and potential risk establish good cause for remote testimony”); SAP, LLC v. EZCare Clinic, Inc., No. CV 19-11229, 2020 WL 1923146, at *2 (E.D.La. Apr. 31, 2020) (“This court will not require parties to appear in person with one another in the midst of the present pandemic.”).
NOTE: The court did note that this holding is not tantamount to a finding that all COVID concerns will always be sufficient to support a videoconference deposition. To view the entire case, see here: https://scholar.google.com/scholar_case?case=16785173016194570252&q=sonrai+systems+v+romano&hl=en&as_sdt=40000006