Just Because the Plaintiff Resides Outside the State Does Not Mean the Plaintiff Cannot Be Compelled to Personally Appear for a Deposition Within State

• Posted on: Sep 25 2024

By: Jeffrey M. Haber

During the Covid pandemic, conducting discovery, especially the taking of depositions, was challenging. Parties and their counsel had to adapt to the global health crisis.

One adaptation was to remotely take depositions. As the courts opened and a new normalcy came into being, many parties and attorneys nevertheless continued to avail themselves of the remote deposition. In the Commercial Division of the Supreme Court of the State of New York, the option to conduct depositions remotely was added to the rules of the court.[1]

Others, however, have refused to consent to virtual depositions, demanding that depositions be taken in person.

The starting point for the analysis of where a deposition is to be taken can be found in CPLR 3110. Under CPLR 3110(1), “[a] deposition within the state on notice shall be taken … when the person to be examined is a party or an officer, director, member or employee of a party, within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending.” (Emphasis added.) In other words, the statutory preference for the location of a deposition is, among other places, “where the action is pending.”

The foregoing rule applies “to nonresidents as well as to residents of the State.”[2] “[A]bsent a showing of hardship, the nonresidence of a defendant does not preclude an examination in the county where the action is pending.”[3]

Whether the deposition of a non-resident plaintiff should be conducted virtually or in person was before the court in Sumec Textile & Light Indus. Co., Ltd. v. Zee Co. Apparel Corp., 2024 N.Y. Slip Op. 51306(U) (Sup. Ct., N.Y. County Sept. 19, 2024) (here). As discussed below, the motion court held that plaintiff was unable to demonstrate hardship sufficient to have the deposition conducted virtually.

Plaintiff argued that good cause existed under Rule 37 of the Rules of the Commercial Division of the Supreme Court to permit its representative to be deposed virtually.[4] Plaintiff argued that its representative resides in China and that the time and expense required for her to travel to New York for a deposition would be unduly burdensome. Plaintiff further argued that plaintiff’s representative is the principal caretaker for a young child and cares for her elderly parents, who all reside in China.

Defendant argued that plaintiff advanced nothing more than an argument of “inconvenience”, which is insufficient to demonstrate “good cause for plaintiff to avoid the obligation to produce a witness for deposition in New York.”[5] Defendant also argued that defendant had the right to conduct the deposition in person, which would provide it with an opportunity “to better assess the credibility of the witness and to present the witness with physical evidence relevant to the case, including a coat and hundreds of documents.”[6] In addition, defendant expressed concerns “that a virtual deposition [could] be prone to technical issues in viewing and sharing documents during the questioning of the witness.”[7]

The motion court agreed with defendant, holding that plaintiff’s representative had to be deposed in person in New York.

The reasons cited by plaintiff are insufficient to overcome the presumption that a party litigating in New York should accept the costs and expenses of choosing to do so. Moreover, as plaintiff has chosen New York as the venue to present its claim, it cannot reasonably argue to be aggrieved by the accompanying obligations.[8]

Takeaway

“While ‘[t]he preferred practice, except in cases where hardship is shown to exist, is to proceed with examinations here’, a preferred practice is not the same as an inflexible rule.”[9] Despite the flexibility, the moving party must demonstrate hardship. While one would think that childcare responsibilities and travel across the globe would suffice, as shown in Sumec, more is needed to overcome the statutory requirement that the deposition of a party is to be taken in the forum in which the action is pending.[10] This is especially so when the movant is the plaintiff in the action.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] See Rule 37 of the Rules of the Commercial Division of the Supreme Court, 22 N.Y.C.R.R. 202.70.

[2] Gazerwitz v. Adrian, 28 A.D.2d 556 (2d Dept. 1967).

[3] Id. (citations omitted). See also Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., B.V., 52 A.D.3d 219, 219 (1st Dept. 2008); Swiss Bank Corp. v. Geecee Exportaciones, Ltda., 260 A.D.2d 254 (1st Dept. 1999); Kahn v. Rodman, 91 A.D.2d 910 (1st Dept. 1983).

[4] In determining that good cause exists, the court may consider, among enumerated and other non-enumerated factors, “the distance between the parties and the witness, including time and costs of travel by counsel and litigants and the witness to the proposed location for the deposition,” “[w]hether the witness is a party to the litigation,” and the “importance or significance of the testimony of the witness to the claims and defenses at issue in the litigation.” See Rule 37(b).

[5] Slip Op. at *1.

[6] Id.

[7] Id.

[8] Id. at *2.

[9] Gryphon Dom., 52 A.D.3d at 219 (quoting Kahn, 91 A.D.2d at 911).

[10] CPLR 3110(1).