In-Person Depositions in a Zoom World
By: Akash Patel
In our post-COVID world, everything appears to be going virtual, including depositions. As a practical matter, virtual proceedings pose unique challenges those involving witnesses (including claimants and plaintiffs) who often struggle with both technology and etiquette. How can we maintain in-person depositions in a world that is seemingly run through Zoom?
O.C.G.A. § 9-11-30(b)(4) provides, in part, “[n]otwithstanding the foregoing provisions of this paragraph, a deposition may be taken by telephone or other remote electronic means only upon the stipulation of the parties or by order of the court.” While a claimant’s counsel has the right to attend a deposition telephonically or via Zoom, counsel does not get to dictate the manner in which the defendant/employer secures a claimant’s deposition. Indeed, scheduling the deposition with opposing counsel, rather than simply noticing it or issuing a subpoena, is a custom and professional courtesy not required by the Civil Practice Act. See O.C.G. A. § 9-11-30(b).
But how do we utilize the law to encourage in-person depositions? “Ordinarily one who chooses a forum should be required to make himself available for examination in that forum.” Warehouse Home Furnishings Distributors, Inc. v. Davenport, 261 Ga. 853 (1992) (quoting Reams v. Composite State Board, 233 Ga. 742(1) (1975)). In Warehouse Home Furnishings, an out-of-state plaintiff living in Texas filed suit in State Court in Georgia against his former employer. 199 Ga. App. 33 (1991), rev'd, 261 Ga. 853 (1992). When the defendant sought to depose the plaintiff in Georgia, the nonresident plaintiff requested a protective order. Id. The Supreme Court of Georgia held the trial court could exercise its discretion to compel an out-of-state resident to come to Georgia to give a deposition. Warehouse Home Furnishings, 261 Ga. at 853.
A claimant’s counsel may attempt to argue the claimant cannot be compelled to attend a deposition in Georgia due to the geographical limitations under O.C.G.A. § 9-11-45(b). The Georgia Supreme Court has previously held that an out-of-state resident cannot be compelled to come to Georgia for the purpose of taking a deposition. Blanton v. Blanton, 259 Ga. 622 (1989). However, the 30-mile geographical limitation under O.C.G.A. § 9-11-45(b) that the court reviewed in Blanton is not applicable where a deposition is deposed under O.C.G.A. § 9-11-30 as a party in the lawsuit. Pascal v. Prescod, 296 Ga. App. 359, 361 (2009). In Pascal, the plaintiff argued that he could not be compelled to attend a deposition that was more than 30 miles from where he resided. Id. The court, applying the holding from Davenport, held that as a party to the claim, the plaintiff’s reliance on the geographical limitations of the code section was “misplaced” and did not apply. Id. There is no relevant authority limiting the geographic scope of the courts ability to compel a party to a claim to be present in the state in which their action is filed.
Furthermore, the need for claimants’ deposition to be in-person versus Zoom is more than for the sake of formality. The claimant is more than a mere witness and credibility must be assessed. Virtual depositions can present unique issues, such as reliability of video equipment, the security of the location in which the deponent is testifying from, the possibility of off-camera influence of the testimony, difficulty in reporting the deposition and the concern of interpretation of the witness’s testimony viewed and heard over video-conferencing equipment.
In sum, the law does not allow for claimants to dictate the manner in which they are deposed. There is no relevant authority limiting the geographic scope of the courts ability to compel a party to a claim to be present for a deposition in the state which their action is filed. Given the added concerns and difficulties faced with Zoom proceedings, defendants/employers should strive to take claimants’ depositions in-person.
Attorney Contact Info
Akash Patel
akash.patel@swiftcurrie.com
404.888.6154