At this point, the vast majority of the impact of COVID-19 on the District of Delaware seems to have passed. The Court has entered Phase 4, full return to normal operations. It's becoming uncommon, at this point, to see counsel or Court personnel wearing masks at the courthouse.
The COVID-19 pandemic was obviously a horrible tragedy, but one positive response to it has been the widespread adoption of remote depositions, which are far (far!) more efficient for certain circumstances. If you've ever flown cross-country for a deposition, then boarded the red-eye back immediately after the deposition, you may agree.
But sometimes the other side won't agree to a remote deposition. That's why I found this order from Judge Stark (who it seems is still working hard in Delaware) to be interesting:
ORAL ORDER: Having reviewed the parties' letters regarding a discovery dispute (see D.I. 543, 544), IT IS HEREBY ORDERED that Plaintiffs' request that MSN and Sandoz be required to produce Dr. Reus for an in-person deposition is DENIED. Virtual depositions have been permitted for fact discovery in this case due to the ongoing global health crisis. (See, e.g., D.I. 34 at 13-14) Defendants represent that their expert is at some greater-than-average risk of adverse health consequences were he to contract Covid and Plaintiffs fail to identify any meaningful prejudice that would result from conducting his deposition virtually.
Otsuka Pharmaceutical Co., Ltd. v. Zenara Pharma Private Ltd., C.A. No. 19-1938-LPS, D.I. 546 (D. Del. Aug. 11, 2022).
Specifically, there are two potentially useful points here:
- The COVID-19 pandemic is still a valid reason to request a remote deposition; and
- There may be no meaningful prejudice to the deposing party from having to take a remote deposition.
Point #2 is going to be fact-dependent, and it will be interesting to see what the alleged prejudice was once the parties file redacted versions of their discovery dispute letters. But, for the time being, it's nice to have some additional ammo in pursuing remote depositions when the circumstances warrant them!
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