| In Hip Replacement Case in
SDNY From Virtual Deposition To HIPAA
Authorization Disputes
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
July 12 – As the
Coronavirus pandemic has
proceeded but civil litigation
has continued, the question of
whether there is a right to
in-person rather than virtual
deposition has repeatedly
arisen.
Inner City
Press has reported on a
proceeding in which the
deposition taker sent the
deponent documents by FedEx,
not to be opened until the
very moment of
questioning.
Now, U.S.
District Court for the
Southern District of New York
Magistrate Judge Stewart D.
Aaron has issued a ruling
denying a deposition taker's
argument that they had a right
to in-person deposition,
complete (if possible) with
Perry Mason moments. From the
decision:
"Before the Court
is a Letter Motion by
Plaintiffs, Jodi Rouviere and
Andre Rouviere
(collectively, “Plaintiffs”),
filed on July 7, 2020, to
compel corporate
representative(s) of
Defendant Howmedica Osteonics
Corporation (“Howmedica”),
doing business as
Stryker Orthopaedics, to
appear in person for a
deposition, pursuant to Rule
30(b)(6) of the Federal
Rules of Civil
Procedure, or, in the
alternative, to extend the
discovery deadline until an
in-person deposition of
Howmedica’s corporate
representative(s) can be
conducted. (Pls.’ 7/7/20 Ltr.
Mot., ECF No. 135.)1 For
the following reasons,
Plaintiffs’ Letter Motion is
DENIED. BACKGROUND
This is a medical device
product liability case that
was commenced on May 31,
2018 arising from
injuries allegedly sustained
by Plaintiff Jodi Rouviere
after receiving a
purportedly defective
hip implant containing
components manufactured by
Howmedica and another
defendant, Defendant DePuy
Orthopaedics, Inc. ...
Chief Judge
McMahon currently is
conducting a bench trial
via Zoom in a patent case in
our Court. See D. Siegal,
Ferring And Serenity’s SDNY
Patent Trial Kicks Off
Over Zoom, Law360 (Jul. 6,
2020). So too,
conducting depositions
remotely is becoming the “new
normal.” See In re Broiler
Chicken Antitrust Litig., No.
16-CV-08637, 2020 WL 3469166,
at *5 (N.D. Ill. June 25,
2020) (“Courts are
beginning to recognize that a
‘new normal’ has taken hold
throughout the country
in the wake of the COVID-19
pandemic that may necessitate
the taking of remote
depositions unless
litigation is going to come to
an indefinite halt until there
is a cure or a vaccine for
COVID- 19.” (citing
cases))....
The only other
potential prejudice to
Plaintiffs by proceeding
remotely is that the
examiner will not be
physically present to interact
with, and observe the demeanor
of, the deponent.
However, a remote deposition
by its nature is not conducted
face-to-face. If the
lack of being physically
present with the witness were
enough prejudice to defeat the
holding of a remote
deposition, then Rule 30(b)(4)
would be rendered meaningless.
See Robert Smalls Inc.
v. Hamilton, No.
09-CV-07171 (DAB) (JLC), 2010
WL 2541177, at *4 (S.D.N.Y.
June 10, 2010)
(“accepting Plaintiffs’
arguments absent a
particularized showing of
prejudice ‘would be
tantamount to repealing [Fed.
R. Civ. P. 30(b)(4)]’”
(citation omitted)); see also
Usov v. Lazar, No.
13-CV-00818, 2015 WL 5052497,
at *2 (S.D.N.Y. Aug. 25, 2015)
(“remote depositions are
‘a presumptively valid
means of discovery’”
(citations omitted))....
For the foregoing
reasons, Plaintiffs’ Letter
Motion (ECF No. 135) is
DENIED. The deposition
of Howmedica’s corporate
representative(s) shall be
taken by videoconference
no later than August 21,
2020, and shall not exceed
eight hours in duration.
Now on April 28,
2021, Judge Aaron held another
conference. HIPAA
authorizations and who signed
them came up again and again.
The case limps forward.
The case is
Rouviere et al v. Depuy
Orthopaedics, Inc. et al,
18-cv-4814 (Liman /
Aaron).
***
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