Effective December 15, 2021, the Commercial Division permanently adopted Rule 37 allowing remote depositions upon consent of all parties or upon motion to the court showing good cause. The rule is accompanied by Appendix G, a proposed stipulated remote deposition protocol that provides guidance on the parties’ rights and responsibilities in conducting remote depositions. 

Statutory Authority

Remote depositions are not new. In effect since before the COVID-19 pandemic, CPLR 3113 gives parties the option of stipulating to conducting depositions by telephone or other remote electronic means. The Commercial Division’s new rule makes remote depositions, previously considered exceptional, more routine. 

Under CPLR 3113, without consent of all parties, a party seeking to conduct a remote deposition is required to show undue hardship associated with conducting the deposition in-person. Rule 37 and Appendix G illustrate a less stringent standard that balances the parties, counsel, and witnesses’ circumstances, prioritizing safety of all those involved. 

Change Is A Good Thing

Pandemic-related changes to litigation have been a constant for nearly two years. While litigants and parties deal with ever-changing guidance from various government entities on what is allowed and what must proceed in a modified fashion, the enactment of Rule 37 gives those utilizing the court system peace of mind in planning and moving forward with depositions. Originally proposed to the Commercial Division’s Advisory Panel in September 2020, Rule 37 demonstrates a willingness to prioritize safety in conducting depositions. 

The Potential Downsides Are Already Working Themselves Out

It is not all perfect though. The variety of available software, hardware, internet connectivity, technological intelligence, and other technical issues can present huge obstacles in conducting remote depositions. However, normalizing remote depositions lowers the costs of obtaining important testimony. It also provides consistency in prosecuting and defending against claims without worrying the procedure will change. Further, the Commercial Division clearly outlined its balancing test allowing for predictability and assurance that the court can prevent abuse of the process, a risk always present in litigation. 

Final Word

Rule 37 softens and solidifies the standard for a procedure New York State Courts have allowed prior to the COVID-19 pandemic. The less stringent requirements will continue to benefit parties going forward, even when (if?) the pandemic subsides. Technological difficulties will work themselves out as we all become more familiar with the software and technology. In sum, while the legal system can be begrudgingly adaptive, Rule 37 stands as a model for technological progress.

Written by Emily Uhlig, Associate Attorney with Adams Leclair and published in The Daily Record, February 2022.