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Federal Court Rejects Request for In-Person Deposition in Trade Secret Case

With the COVID-19 pandemic still ongoing throughout the United States, lawyers have had to come up with creative solutions to complete discovery, particularly when it comes to taking depositions. Over the past few months and for the foreseeable future, most depositions are taking place, at least in part, using videoconferencing technology. As these depositions have become more widespread, some attorneys have asked courts to require in-person depositions.

A federal court in Chicago recently considered a request for an in-person, rather than remote, expert deposition. In Sonari Systems v. Romano, et al., No. 16-cv-3371 (N.D. Ill. July 13, 2020),  an employer sued its former employee and his new company alleging theft of information and breach of fiduciary duty. When it was time to depose the defendant company’s expert, plaintiff’s counsel stated it would conduct the deposition in-person. The defendant asked the court for a protective order requiring the deposition to take place remotely due to the pandemic.

Defendant’s counsel cited safety concerns along with interstate travel that would be required for the deposition. In response, plaintiff’s counsel argued that defendant’s counsel could call or videoconference into the deposition to defend it, while still allowing plaintiff’s counsel to be in the same room as the expert. Plaintiff’s counsel cited concerns with assessing witness credibility and navigating the many documents discussed in the deposition.

The court began its analysis by noting that courts around the country have moved largely to videoconferencing rather than in-person meetings for hearings, conferences, and other court activities. The court also noted travel restrictions in Illinois and Massachusetts (where defendant’s counsel was based). The court then cited cases from Chicago, New York, Minnesota, and New Orleans, all also requiring depositions to take place remotely due to the pandemic.

While acknowledging the value of taking a deposition in person, the court noted that videoconferencing still allows the attorney taking the deposition to assess a witness’s credibility, perhaps even more so than a deposition in person with the deponent wearing a face mask. Acknowledging the difficulties in reviewing documents remotely, the court noted that these difficulties did not outweigh the health concerns of defendant’s counsel and the expert. The court concluded that the deposition thus needed to take place over videoconference.

Videoconference depositions are here to stay, at least in the short term, and likely in the long term as attorneys and clients realize they are a feasible, cheaper alternative to depositions that require interstate travel. Courts are rejecting concerns about difficulties related to videoconference depositions in light of the pandemic, so attorneys and litigants must be prepared to engage in this type of discovery.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 205
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About this Author

Thomas P. Hubert, Jones Walker, Defamation Lawsuits Lawyer, Unfair Trade Practices Attorney
Partner

Thomas Hubert is a partner in Jones Walker's Labor & Employment Practice Group and a lead trial attorney for the firm's Trade Secret Non-Compete Team. Since 1989, Mr. Hubert has practiced primarily in the area of labor and employment law, as well as in areas that fall under more traditional commercial claims. Specifically, Mr. Hubert has focused on business and commercial litigation, as well as labor and employment (including commercial contracts, Unfair Trade Practices Act, Trade Secret Act, covenant not to compete agreements, defamation, errors and omissions for...

504.582.8384
JACOB J. Pritt Associate New Orleans Labor & Employment Practice Group
Associate

Jacob Pritt is an associate in the firm’s Labor & Employment Practice Group.


While attending Tulane University Law School, Jacob served as a notes and comments editor for the Tulane Law Review and served as the head coach of the Maritime Appellate Advocacy Team.

504-582-8643
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