Court Allows Zoom Depositions for Plaintiffs in Mexico
We’ve blogged before about remote deposition interpreter services via Zoom video conferencing and the challenges that may arise during these virtual out-of-court proceedings. In Macias v. Monterrey, the Spanish-speaking plaintiffs filed suit against a concrete contracting business (defendant) alleging violations of the Trafficking Victims Protection Act (“TVPA”), the Fair Labor Standards Act (“FLSA”), and breach of contract. The plaintiffs were Mexican nationals who entered the United States between 2014 and 2018 on H-2A and H-2B visas to work for the defendant, which was located in Virginia.
Discovery Dispute Arises Over Mexico-Based Plaintiffs.
The defendants issued notices for the plaintiffs’ depositions to be taken in person. The Mexico-based plaintiffs then notified the defendants that ten of the seventeen plaintiffs were located in Mexico and were therefore unable to attend depositions in Virginia due to COVID-19 and the related government-imposed travel restrictions. Plaintiffs then proposed that the defendants conduct the depositions of the Spanish-speaking plaintiffs in Mexico remotely via Zoom, but the defendants rejected this proposal. The parties brought the issue of this discovery impasse to the court’s attention, which directed the parties to submit briefs on the issue for the court’s consideration.
Plaintiffs File Motion for Protective Order and Motion to Allow Depositions to be Conducted Remotely.
Plaintiffs then filed a motion for a protective order and for an order permitting remote depositions of certain plaintiffs pursuant to Federal Rules of Civil Procedure (F.R.C.P) 26(c)(1) and 30(b)(4). Several federal and local rules applied to the dispute. According to F.R.C.P 26(c)(1), Rule 26(c)(1) allows a court, upon a showing of good cause, to issue a protective order “to protect a party or person from . . . undue burden or expense” associated with a deposition or other discovery by:
(B) specifying terms, including time and place or the allocation of expenses for the . . . discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery.
The moving party has the burden of proof of establishing “good cause” that a specific harm will result if a protective order is not granted. United States ex rel. Davis v. Prince, 753 F. Supp. 2d 561, 565 (E.D. Va. 2010) (quoting Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002)).
Under Rule 30(b)(4), parties may conduct depositions remotely upon agreement of the parties or an order of court. While this rule does not articulate a particular burden of proof on the moving party, courts generally require a “legitimate reason” for conducing the deposition remotely. In addition, while a local rule requires plaintiffs’ depositions to be taken in the division where the lawsuit was filed, a court can make exceptions when “special circumstances” exist. In this case, the Spanish-speaking plaintiffs argued that it would be very difficult for the plaintiffs living in Mexico to enter the United States lawfully in light of the COVID-19 pandemic. The defendants argued in response that taking the depositions in Mexico would violate the Hague Convention and would prejudice the defendants due to concerns involving the number of documents and Spanish deposition interpreters involved.
Defendants Claim Depositions in Mexico Would Violate The Hague Convention
In opposing the taking of the Spanish-speaking plaintiffs’ depositions remotely, the defendants argued that the plaintiffs’ depositions could not proceed there because deposing the Plaintiffs in Mexico according to the Federal Rules of Civil Procedure would violate the Hague Convention. However, as the court noted in its opinion, the defendants failed to provide the court with any explanation or reasoning as to why taking the plaintiffs’ depositions in Mexico would violate the Hague Convention. Accordingly, the court found that the defendants had not met their burden of proving that the Hague Convention applied to this matter.
Court Grants Plaintiffs’ Motion for Protective Order; Finds Spanish Translation Concerns Not Prejudicial to Defendants.
In addition to finding that the defendants had not met its burden of establishing that the Hague Convention applied to the dispute, the court also held that the defendants had failed to establish prejudice that would prevent the plaintiffs’ depositions from being taken remotely. The Defendants argued that taking the plaintiffs’ depositions by video would hinder their ability to assess the deponents’ demeanor. However, the court stated that “the fact that Defendants’ ability to assess the plaintiffs’ demeanors by video conference is less than it would be in person does not itself establish the prejudice necessary to defeat a motion for remote depositions. If the inability to assess a deponent’s demeanor in person alone suffices to show prejudice, then Rule 30(b)(4) would be without meaning or effect.” Citing Grupo Petrotemex, S.A. de C.V. v. Polymetrix AG, No. 16-cv-2401, 2020 WL 4218804, at *3 (D. Minn. July 23, 2020); Webb, 283 F.R.D. at 280.
The court also rejected the defendants’ argument that they would be hindered by taking the depositions remotely because the case required the use of Spanish deposition interpreters. As to this point, the court held as follows:“Plaintiffs requires interpreters whether the depositions are conducted in person or remotely. Defendants speculate that remote depositions would cause longer translation delays than the parties have experienced at in-person depositions… but Defendants have not explained why that would be the case or offered any authority or evidence to buttress that prediction.”
See Valdivia v. Menard Inc., No. 19-cv-50366, 2020 U.S. Dist. LEXIS 132935, at *4 (N.D. Ill. July 28, 2020) (rejecting a similar assertion that the need for interpretation during a deposition by video prejudiced the deposing party). In Valdivia, the court noted that it had observed “interpreters . . . that are capable of proceeding effectively through remote means” and that counsel had also “successfully used interpreters for remote depositions in the past,”… a sentiment echoed by Plaintiffs’ counsel.”
Finally, the court noted that video depositions during the Covid-19 pandemic may allow counsel to better assess a deponent’s demeanor than they would if the deposition were to be taken in person given the likelihood that the deponent would be required to wear a mask or face-covering for the duration of the on-site deposition.
In sum, the court held that the defendants’ concerns with taking the Spanish-speaking plaintiffs’ depositions remotely did not establish sufficient prejudice to justify a court order requiring the depositions to be taken in person, particularly because the plaintiffs were located in Mexico and were unlikely to be able to travel to the United States in the near future due to circumstances beyond their control. The case is Arturo Esparza Macias v. Monterrey Concrete LLC, Court No. 3:19cv830, decided on October 30, 2020 in the United States District Court for the Eastern District of Virginia.
Legal deposition translation service All Language Alliance, Inc. provides in-person court certified deposition interpreters and Zoom video deposition interpreting services in Spanish; Italian; Krahn; Anuak; Russian; Norwegian; Malay; Pulaar; Hindi; Mandarin; Turkish; Mongolian; Neapolitan Italian dialect; Cantonese; Korean; German; Punjabi; Amharic; Thai; Gujarati; Ningbo; Hungarian; Canadian French; Québécois; French Canadian; Armenian; Tagalog; Somali; Nepali; Malayalam; Wolof; French; Sinhala; Uzbek; Japanese; Rohingya; Indonesian; Gujarati; Haitian Creole; Mennonite Low German; and other foreign languages to reduce disputes over a deposition translation and interpretation. Our remote deposition interpreters for international depositions also have experience with using CourtCall, Veritext, Webex, and other video deposition interpreting platforms and services, similar to Zoom.
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