Out-of-State Deposition Witnesses; Video Depositions

Mohel v Gavriel Plaza, Inc.,

___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 08508 [1st Dept., 2014]
This terse decision prompts a review of the rules governing the deposition site of out-of-state parties, as well as of depositions by video conference. The nature of the action is not stated, but the defendant Highland was a Limited Liability Company with one member, a resident of Israel. The Appellate Division affirmed Supreme Court’s order conditionally striking Highland’s answer unless it produced that member for deposition in New York. The court observed that the plaintiff did not have to consent to the member’s deposition by video conference. (See, CPLR 3113 [d])
The general rule is that absent a showing of hardship, a party to an action in our courts must be deposed in New York, and must bear its own expenses in coming here. Compare Criscenti v Verizon, 72 A.D.3d 464, where a corporate party showed no hardship and had to come to New York for deposition; with Gartner v Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, where a decedent’s next of kin lived in Colombia and could not come to New York without hardship. Alternatives to a New York deposition were allowed and listed.
Two recent cases illustrate the point. 

In Weinstein v Gindi, 92 A.D.3d 526, the plaintiff alleged no particular difficulty to justify his refusal to come to New York for deposition, only his reluctance to open himself to enforcement of an arrest warrant issued on his contempt in an unrelated action. This does not constitute hardship, and the complaint was properly stricken.
In Gabriel v Johnston’s L.P. Gas Service, Inc., 98 A.D.3d 168, opn. amended 104 A.D.3d 1262, on the other hand, the plaintiffs were nine impoverished immigrant migrant workers who alleged that they had been injured in a 2005 propane explosion at a farm camp in upstate New York. All nine were in the country illegally, as undocumented farm workers. By 2011, seven had been deposed by all defendants, one had been deposed by only one defendant, and two were completely undeposed. At that point, only three plaintiffs remained in the country, five having returned to Guatemala, and one to Mexico. Two of the remaining three intended to leave the country shortly.
They showed that financial considerations and their immigration status made it difficult if not impossible for those who had left the country to return for further depositions, or to testify at trial. The Fourth Department accepted that this constituted undue hardship and directed that further depositions were to be taken by video conference, not only to complete the depositions of those plaintiffs who had not been fully deposed, but also second depositions of all plaintiffs to be used at trial.
It should be carefully noted that in Gabriel, the case of hardship was carefully and fully set out and documented. Conclusory allegations of hardship will not suffice. In the modern era, mere travel alone is not generally held to be sufficient to establish hardship. In Criscenti, for example, travel from California to New York was not a hardship. Many other cases so hold: Born to Build, LLC v. Saleh, 115 A.D.3d 780 (Hong Kong to NY); Bristol-Myers Squibb Co. v Chen, 186 A.D.2d 999 (Taiwan to Onondaga County not a hardship, especially where the defendant returned there after being served with an order to show cause); Prometheus Books v Russica Book and Art Shop, Inc., 105 A.D.2d 1138 (NYC to Buffalo); Cooper v Met Merchandising, 54 A.D.2d 859 (Florida to NY). This is especially true as to a plaintiff, as in Weinstein, who has invoked the jurisdiction of our courts.
In Gabriel, the direction to hold the depositions by video conference was made under the general supervisory authority of CPLR 3103, and not CPLR 3113(d). There was no discussion of why video depositions were directed, but the expense and logistical difficulty of moving all attorneys concerned to Mexico and Guatemala are obvious. It would not seem that this case is authority for video depositions in any but the most unusual cases.

CPLR 3113 (d) allows but does not require the parties to stipulate to “a deposition by telephone or other remote electronic means and that a party may participate electronically.” Where the parties do agree, the stipulation should provide for the generation of a record, specify how exhibits are to be handled, who should be physically present, and any other considerations which may be relevant. Particular consideration should be given to the identity and location of the officer administering the oath. In the vast majority of cases, of course, all participants are at the same table and the officer is simply the court reporter, who acts also as a notary public.

In the case of a remote or video deposition under CPLR 3113 (d), this arrangement is not so obvious and may not be possible. Unless the parties stipulate otherwise, the officer administering the oath “shall” be physically present at the place of deposition, and the costs of the deposition attributable to the electronic means shall be borne by the party requesting the electronic deposition. Where the deposition is to be regarded as taking place is not specified, but caselaw indicates that it is where the witness is physically located, and not the attorneys. See, Matter of Washington v Montefiore Hospital, 7 A.D.3d 945, which involved a workers’ compensation hearing where the witness participated by telephone. The notary was not with the witness, but instead was in an office with the attorneys. The court noted that the arrangement was an error, but that it had been waived by the parties’ failure to object.
If the witness is in New York, the officer may simply be any notary or equivalent. If in some other state or United States territory, the officer can be any person authorized by New York’s Real Property Law to take the acknowledgment of deeds or to administer oaths by federal law or the laws of the state or territory.
The identity of the officer raises a more difficult issue in cases such as Gabriel, where the proposed video deposition involves a witness in a foreign country. Then, it is not simply a matter of hunting up a notary or the local equivalent. CPLR 3113(a)(3) specifies that where a deposition is to be taken in a foreign country, it is to be taken before “any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds.”

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