As noted in two prior posts, one on May 15, 2020, and the other on May 29, 2020, the COVID-19 pandemic and the resulting explosion in the use of remote depositions present a number of novel issues for lawyers to consider, whether taking or defending depositions. Regardless of these “unprecedented times,” some things remain the same, including that it is improper for a witness to be coached about answers while the deposition is occurring.
The last month of the year brought changes to Rule 30 of the Federal Rules of Civil Procedure, specifically Rule 30(b)(6), governing deposition notices to organizations. The rule was amended, effective December 1, 2020.
The Northern District of California recently applied the Ninth Circuit’s ingredients list rule in a putative class action decision. The Court refused to grant Nestlé USA Inc.’s summary judgment motion based on the statute of limitations in a suit involving allegations that Nestlé misleads consumers about the trans-fat content of their Coffee Mate creamer products. The Court held that a triable issue of fact remained because it was not clear when the consumer first learned about the alleged deception.
The COVID-19 pandemic has closed courthouses from coast to coast for all but essential proceedings. Most civil trials and hearings are on hold. Some courts are encouraging, and in some cases ordering, the continuation of discovery — including depositions using video or audio conferencing. Others have extended discovery schedules to await easing of pandemic restrictions. This post examines the different approaches courts are taking and the arguments litigants might make — or respond to — about whether to proceed with remote depositions. In a second post, we’ll discuss practical considerations for lawyers who choose to — or are ordered to — proceed with remote depositions.