Wag Hotels, Inc. v. Wag Labs, Inc.

Opinion

WAG HOTELS, INC., Case No. 20-cv-01326-BLF (VKD)

Plaintiff, ORDER RE SEPTEMBER 7, 2022 v. DISCOVERY DISPUTE

WAG LABS, INC., Re: Dkt. No. 53 Defendant.

The parties ask the Court to resolve their dispute regarding whether two party witnesses may be compelled to give deposition testimony in person or whether the witnesses should be permitted to testify via remote video conference using Zoom or another platform. Dkt. No. 53. The Court finds this dispute suitable for resolution without oral argument. See Civil L.R. 7-1(b). In March of 2022, defendant Wag Labs, Inc. (“Wag Labs”) served deposition notices on plaintiff WAG Hotels, Inc. (“WAG”), its CFO, Jessica Fuery-Pum, and its CEO, David Appel, to testify on its behalf. Dkt. No. 53 at 1. Wag Labs wishes to take these depositions in person at its counsel’s offices in San Francisco, as noticed. Id. WAG objects to in-person depositions, and contends the depositions should be taken by video conference or conducted outdoors. Id. Rule 30(b)(1) of the Federal Rule of Civil Procedure permits the party seeking the deposition to set the time place of a deposition, upon reasonable written notice. Fed. R. Civ. P. 30(b)(1). However, the Court may, on motion, order that the deposition be taken by remote may move for a protective order to protect the deponent from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). In resolving the parties’ dispute, the Court considers the harm or prejudice to WAG’s witnesses if they are required to testify in person, and the harm or prejudice to Wag Hotel if the witnesses testify by video conference. See, e.g., Vargas v. Evergreen Pro. Recoveries Inc., No. 2:21-CV-00926-RSL-JRC, 2022 WL 856991, at *1 (W.D. Wash. Mar. 23, 2022); JUUL Labs Inc. v. Chou, No. 2:21-CV- 03056-DSF-PD, 2022 WL 2165411, at *3 (C.D. Cal. Feb. 11, 2022). WAG objects to the in-person depositions of Ms. Fuery-Pum and Mr. Appel “due to concerns about contracting Covid and related health concerns.” Dkt. No. 53 at 1. WAG does not elaborate on these concerns in support of its objection. Its portion of the joint submission includes excerpts of counsels’ communications about depositions, but it is not clear whether Ms. Fuery- Pum and Mr. Appel are the “prospective deponents” being discussed.1 One such excerpt states that an unnamed deponent has an immediate family member who suffers from “long COVID” and also has a spouse with a compromised immune system (id. at 2 & n. 1), while another unnamed deponent has young children who have had COVID once before (id. at 2). Because WAG has not articulated any particular concerns specific to either Ms. Fuery-Pum or Mr. Appel, the Court understands WAG’s argument to be that the COVID-19 pandemic is not over, even if public health conditions have improved substantially in San Francisco, and participating in in-person depositions remains unsafe for everyone. Wag Labs argues that in-person depositions are superior to depositions by remote video conference and that there is no reason why Ms. Fuery-Pum and Mr. Appel should not be expected to testify in person. Id. at 4. Specifically, Wag Labs observes that “[n]either deponent is ill, there are no COVID restrictions in San Francisco for in-person meetings, and there are no travel risks for either Mr. Appel or Ms. [Fuery]-Pum, as both are domiciled near the Bay Area.” Id. In addition, Wag Labs argues that Mr. Appel can have no plausible COVID-related health concerns

1 WAG’s portion of the joint submission does not indicate which deponent has which concerns, or that would interfere with his sitting for an in-person deposition because he is travelling internationally throughout Europe during the month of September—a riskier endeavor. Id. Moreover, Wag Labs claims that video conference depositions are “inherently limited,” and create more stress and anxiety for the deponent and the examiner. Id. The Court agrees with WAG that public health conditions are not yet “normal.” After all, there is still a public health emergency declaration in effect due to COVID-19. See https://aspr.hhs.gov/legal/PHE/Pages/covid19-15jul2022.aspx. On the other hand, while there was a time during the pandemic when it was unsafe for anyone to conduct depositions in person, Wag Labs is correct that circumstances have changed. The Bay Area counties now enjoy “low” (e.g., San Francisco, Alameda) or “medium” (e.g., Marin) COVID-19 community levels and do not have any prohibitions on in-person gatherings.2 Nevertheless, people continue to get sick and die from COVID-19. The Centers for Disease Control and Prevention (“CDC”) provides the following general guidance: Many people in the United States have some protection, or immunity, against COVID-19 due to vaccination, previous infection, or both. This immunity, combined with the availability of tests and treatments, has greatly reduced the risk of severe illness, hospitalization, and death from COVID-19 for many people. At the same time, some people—such as those who are older, are immunocompromised, have certain disabilities, or have certain underlying health conditions—continue to be at higher risk for serious illness. 3 WAG has not shown that its two deponents have any risk factors or other circumstances that put them at risk for serious illness from exposure to COVID-19. In fact, as to Mr. Appel, Wag Labs makes a persuasive showing that Mr. Appel’s health concerns are selective, in so far as he is willing to undertake the risk of exposure associated with international travel but not willing to undertake the arguably much more modest risk of attending an in-person, local deposition in a large conference room. 2 See https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html. At the same time, remote video conferencing has become a standard means of taking depositions. See, e.g., Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp. 3d 571, 575 (S.D.N.Y. 2020). In fact, many litigants prefer in-person depositions as a matter of convenience and efficiency. Apart from an assertion that it should be permitted to evaluate the credibility of WAG’s witnesses in person, Wag Labs offers no particular reason why it would suffer prejudice if these two depositions were conducted by remote video conference. See Dkt. No. 53 at 7. Indeed, it may be easier for Wag Labs to evaluate the credibility of witness who appears via video conference without a mask than it is to evaluate the credibility of a witness who wears a mask while testifying in person. See id. (Wag Labs stating it has “no objection if the witnesses would like to wear masks”). In these circumstances, if Wag Labs wishes to take the deposition of Mr. Appel in person it may do so, so long as the COVID-19 community levels remain “low” or “medium” in the Bay Area. WAG has made no showing that Mr. Appel is among the people the CDC considers at high risk for serious illness from COVID-19 exposure or that he resides with someone at such risk. In addition, given the undisputed evidence that Mr. Appel is currently engaging in international travel, the Court infers that he can also safely participate in an in-person deposition without undue risk to himself or others, so long as reasonable precautions are taken. WAG also has made no showing that Ms. Fuery-Pum is among the people the CDC considers at high risk for serious illness from COVID-19 exposure or that she resides with someone at such risk. However, the record is less developed as to Ms. Fuery-Pum. If she does fall into this risk category, the Court expects her deposition to proceed by remote video conference unless she is willing to participate in an in-person deposition. For the reasons explained above, Mr. Appel’s deposition shall proceed in person as noticed, unless the parties agree otherwise. Counsel must promptly confer regarding Ms. Fuery-Pum’s circumstances. If she is among the people the CDC considers at high risk for serious illness from COVID-19 exposure or resides 1 parties agree otherwise. 2 For any deposition conducted in person, the Court expects the parties to take reasonable 3 precautions to avoid transmission of COVID-19, including, for example, requiring all participants 4 to submit evidence of a negative COVID-19 antibody test taken within 24 hours of the deposition. 5 Requests to extend case management deadlines must be submitted to the presiding judge. 7 Dated: September 12, 2022 8 9 VIRGINIA K. DEMARCHI 10 United States Magistrate Judge 11 12

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