Perhaps the most facile musing of the late-stage (please) pandemic, is wondering if remote work will become a permanent fixture in our lives. It's become such a common topic for think pieces, that I would not disgrace these hallowed pages with another trite contribution to the ouevre.
I am, however, duty-bound to note a recent development that suggests that remote depositions may not be long for this world. The issue arose before Judge Andrews last week in Takeda Pharms. USA, Inc. v. Mylan Pharms .Inc. C.A. No. 19-2216. The plaintiffs sought to depose the defendant's former counsel, who "purportedly reviewed, drafted, and edited the settlement and license agreements that are at the center of this case" in person. Id., D.I. 206 at 1. Defendant moved for a protective order, arguing that any deposition should be remote and chastising the plaintiff for "insisting that counsel for both parties fly across the country during a pandemic and sit in a room with the witness, a court reporter, and a videographer so that the deposition can be conducted in person." Id., D.I. 204 at 1.
In a brief oral order, Judge Andrews required the deponent to appear in person:
considering that the objection to an in-person deposition appears to be based principally on the general reluctance of Mylan's counsel to fly across the country, but also noting that Mylan's law firm has about 250 lawyers in the Bay Area, one of whom entered an appearance in this case, and that the deponent has raised no objection based on the pandemic, I do not think there is any good reason not to conduct the deposition in person in the Bay Area. Takeda's request for an in-person deposition is granted.
Id., D.I. 207.
Notably, the defendant's opening letter did state that the witness was "the father of two young children, neither of whom has been vaccinated," but it did not specifically call out any personal health concerns that might have tipped the scales in favor of a remote deposition. It will be interesting to see how future disputes play out.
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