Not all attorneys love remote depositions, even if they are much more convenient and practical in many cases (especially for foreign witnesses). The parties in Supernus Pharmaceuticals, Inc. v. Lupin Limited, C.A. No. 21-1293-MN (D. Del.), an ANDA case, brought two disputes before Judge Noreika about remote depositions:
- Whether all parties should be required to make all witnesses available live, instead of via remote deposition; and
- Whether all parties, including a defendant who brought counterclaims, should be required to bring their witnesses to the United States for deposition without the other parties having to engage in Hague Convention procedures.
Plaintiff sought to force live, in-person depositions of all witnesses in the United States. Defendant offered only to provide 30(b)(6) witnesses in the United States, citing the ongoing pandemic.
On Friday, Judge Noreika charted a path between those two extremes, and ordered that witnesses who are likely to testify must be offered for deposition live, and must be brought to the United States:
ORAL ORDER . . . Having reviewed the parties' letter and proposed Scheduling Order, IT IS HEREBY ORDERED that for any witness likely to be called live at trial, that witness will appear and testify live in the United States for their deposition. For other witnesses, the parties should work together in a constructive and cooperative manner to determine a reasonable location and the logistics for such depositions.
That looks like a clear rule, although I can imagine parties getting into disputes regarding whether a witness is "likely to be called live at trial" (and by which party). We'll have to see whether this becomes the default going forward.
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