Excerpted from an article by Kris Olson in the January 11, 2021 issue of Massachusetts Lawyers Weekly
A Middlesex Superior Court judge has decided that while the COVID-19 pandemic continues to rage, “A party can refuse to appear in person for a deposition by agreeing to participate remotely.”
The matter at hand is a case involving a group of Holliston (Mass.) residents appealing the town’s decision to grant a variance that would allow a developer to build two warehouse buildings. Pierce Atwood real estate and litigation attorney Donald R. Pinto, Jr., representing the project developer, requested that the court compel the plaintiffs to appear in person for their deposition.
Don informed plaintiffs’ lawyer that Pierce Atwood has, “an extra-large conference room that can easily accommodate the handful of people that will be present while observing all applicable distancing and other protocols,” adding that the room “had hosted many depositions, real estate closings, and meetings during the pandemic.”
While acknowledging the seriousness of the coronavirus, Don noted that “eight months into the pandemic, with much greater knowledge of the risks of the virus and how to mitigate them, people have resumed many of their normal daily activities such as going to work, exercising, shopping, dining out, and socializing in small groups.”
Although Don offered to make accommodations for any of the plaintiffs who were at higher-risk for severe complications from COVID-19, their lawyer refused, stating that in order to force in-person depositions, Don would need to get a court order.
Don believed that Massachusetts Rule of Civil Procedure 37(d) was clear: if the plaintiffs wanted to be excused from attending a duly noticed deposition, the burden was on them to seek a protective order. Don also cited the “many reasons” that remote depositions are a poor substitute for in-person ones, “such as the occurrence of technological glitches and the limits they place on counsel’s ability to fully evaluate the witness’s demeanor and credibility, or to monitor whether a witness is reviewing notes or consulting with another person off-camera.”
Judge Patrick M. Haggan concluded that, “the dispute boiled down to a good-faith disagreement over how to interpret Supreme Judicial Court Order OE-144, issued May 26, in which the SJC authorized remote attendance at depositions in civil cases “without stipulation or court order.”
While the court wanted to make remote depositions “easy, convenient and available,” Don does not think the SJC intended to “give deponents veto power over duly noticed in-person depositions, especially when the order on its face applies only to remote depositions.”
Nonetheless, Don acknowledges that had the virus been as widespread in September as it is now, he probably would not have filed the motion to compel. He says he will likely now move forward with conducting the depositions remotely, unless widespread vaccine dissemination makes in-person meetings a safer proposition.
The complete article can be found in the January 11, 2021 issue of Massachusetts Lawyers Weekly.