Lewis v. CoreCivic of Tennessee, LLC

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Marva LEWIS, Case No.: 21-cv-01385-JAH-BGS

10 Plaintiff, ORDER FOR IN-PERSON 11 v. DEPOSITION OF DR. CARROLL

12 CORECIVIC OF TENNESSEE, LLC, et [ECF 49] al., 13 Defendant. 14

15 On September 6, 2023, the parties contacted the Court with a dispute about 16 whether Defendant’s expert witness, Dr. Matthew F. Carroll, must submit to an in-person 17 deposition as provided in the deposition notice served by Plaintiff or whether he may be 18 deposed remotely as Defendant has requested. For the following reasons, the Court 19 ORDERS that Plaintiff’s deposition of Dr. Carroll occur in person. 20 The court may on motion order that a deposition be taken by telephone or other 21 remote means. Fed. R. Civ. P. 30(b)(4). “The Court’s analysis proceeds in two steps: 22 (1) the proponent must advance a legitimate reason for seeking a remote deposition; and 23 (2) if the movant articulates a legitimate reason, then the burden shifts to the opposing 24 party to make a particularized showing that conducting the deposition by remote means 25 would be prejudicial.” Henry v. Tacoma Police Dept., 3:22-cv-05523-LK, 2023 WL 26 5530201, at *2 (W.D. Wash. Aug. 28, 2023) (internal quotation marks omitted); see also 27 U.S. v. $160,0066.98 from Bank of Am., 202 F.R.D. 624, 629 (S.D. Cal. July 5, 2023) 28 1 (holding that the plaintiff had “made a particularized showing why converting the 2 depositions to telephonic would be prejudicial to its . . . case”). Recently, “video 3 conferencing has become a standard means of taking depositions.” Henry, 2023 WL 4 5530201, *3; see Vargas v. Evergreen Prof. Recoveries, Inc., No. 2:21-cv-00926-RSL- 5 JRC, 2022 WL 856991, at *1 (W.D. Wash. Mar. 23, 2022) (noting that the pandemic has 6 rendered remote depositions routine “as attorneys and litigants have adapted to new ways 7 to practice law”). However, “remote depositions, particularly of a party or key witness, 8 will [not] always be appropriate.” Id. “Although remote depositions have become more 9 common since the COVID-19 pandemic, this is ‘not an indication that the Court intends 10 to allow parties to use COVID-19 as carte blanche to avoid in-person depositions. Such 11 matters must be determined on a case-by-case basis.’” Smartwings, A.S. v. Boeing Co., 12 No. C21-918 RSM, 2023 WL 3075698, at *2 (W.D. Wash. Apr. 25, 2023) (quoting 13 Vargas, 2022 WL 856991, at *3). 14 Defendant cites decisions that hold that the COVID-19 Pandemic is a “legitimate 15 reason,” see Henry, 2023 WL 5530201, at *2, for a court to order that a deposition shall 16 be held remotely. (See ECF 49 at 5.) Defendant notes that Dr. Carroll is over 60 years 17 old and that his brother died because of contracting COVID-19. (Id. at 4.) Defendant 18 cites an August 25, 2023, CNN report that COVID-19 hospitalizations have increased 19 22% in the last few weeks. (Id.) 20 Plaintiff argues that COVID-19 does not justify a remote deposition because in 21 May 2023, the COVID-19 state of emergency was terminated by the federal government 22 and had already been terminated by the State of California. (Id. at 3.) Plaintiff stresses 23 that Dr. Carroll is the only designated expert in this case and is a key witness whose 24 credibility is central to this case. (Id. at 2.) Plaintiff notes that Dr. Carroll’s expert report 25 from his independent medical examination of Plaintiff is based on hundreds of medical 26 records. (Id.) Referring to individual records during an in-person deposition would be 27 much more efficient than doing so during a remote deposition. (Id.) Plaintiff also notes 28 that Dr. Carroll has been paid by Defendant to testify, that Defendant intends to call him 1 || at trial, and that Dr. Carroll’s office is less than a mile from the office of counsel for 2 || Plaintiff where he would be deposed. (ECF 49 at 2.) 3 Assuming that COVID-19 is currently a legitimate reason to avoid an in-person 4 || deposition (although the federal government and the State of California are no longer in a 5 || state of emergency related to COVID-19), and that the burden, therefore, shifts to 6 || Plaintiff, the Court holds that Plaintiff has made a particularized showing that conducting 7 deposition remotely would be prejudicial to Plaintiff that outweighs Defendant’s 8 showing of a legitimate reason. See Bank of Am., 202 F.R.D. at 629-30 (holding that 9 || although deponents located in Pakistan had legitimate considerations in support of remote 10 || depositions, those considerations did not outweigh the plaintiff’s need to conduct the 11 depositions in-person in San Diego, which included avoiding the compromised 12 || effectiveness of a telephone deposition). 13 Specifically, Dr. Carroll is the only designated expert witness in the case, which 14 || makes his credibility critical. (ECF 49 at 2.) Deposing him in person rather than 15 |}remotely would presumably allow Plaintiff to better appraise his credibility before trial. 16 || In addition, the deposition of Dr. Carroll will be document-heavy, involving reference to 17 ||hundreds of medical records, which would make the deposition much more efficient if 18 in person rather than remotely. (/d.) Dr. Carroll’s office is also near the office of 19 ||counsel for Plaintiff. (d.) 20 The Court, therefore, ORDERS that the deposition of Dr. Carroll shall be 21 |}conducted in person. 22 IT IS SO ORDERED. 23 Dated: September 12, 2023 : p / / 24 on. Bernard G. Skomal 25 United States Magistrate Judge 26 27 28