Interpreted Video Depositions Becoming the Norm During Covid-19
We’ve blogged before about legal video deposition interpreting services via videoconferencing and the challenges that can arise, particularly when multilingual deposition translators and interpreters are involved. Given the worldwide impact of the Covid-19 pandemic, interpreted video depositions are becoming more and more widely utilized as an important tool to keep parties safe and litigation moving forward. In the case discussed below, the court allowed the depositions of plaintiff’s corporate representatives to be conducted electronically despite the defendant’s objections.
A Singapore Subsidiary Files a Maritime Lawsuit
Plaintiff, a Singapore-based subsidiary of an international shipping conglomerate, filed maritime lawsuit after one of its vessels collided with a dock at the Port of New Orleans in April of 2018. Plaintiff alleged that as its vessel approached its berthing position in the Port of New Orleans, the vessel collided with a piece of steel that was protruding from the wharf. The defendants, the Board of Commissioners of the Port of New Orleans (“Dock Board”), argued that the Plaintiff was responsible for the accident according to a basic tenor of maritime law that says if a vessel strikes a fixed object, the vessel is at fault. The defendants also claimed that the plaintiff’s vessel arrived at the wharf at a high rate of speed and without appropriate navigational equipment. The defendants also maintained that the vessel sailed into the wharf at an abnormal angle, causing the vessel to strike the wharf with such force that it punctured the vessel’s fuel tank.
Plaintiff Files Motion for Depositions to be Taken Via Video Conferencing.
The Singaporean Plaintiff filed a motion to quash or to limit the deposition of its corporate witnesses. In the motion, Plaintiff asked the court to order the witnesses to be deposed by video conference in light of Covid-19. Plaintiff argued that it would not only be burdensome, but dangerous, for the witnesses to travel from Singapore to New Orleans during the Covid-19 pandemic.
Plaintiff argued that, pursuant to Singaporean law, the deponents would be required to quarantine for 14 days at a government facility upon returning home from the United States. In addition, plaintiff argued that the increased health risks of the deponents appearing in person was completely unnecessary given the availability of videoconferencing. Moreover, the Plaintiff claimed that because it was necessary to designate multiple representatives to address the noticed deposition topics, if the depositions were to occur in person, more people would be unnecessarily exposed to COVID-19 than if the depositions occurred electronically.
The Defendants opposed the motion. Defendants requested that the court order the Plaintiff’s depositions to take place in New Orleans and that the depositions be rescheduled to a later date after travel restrictions had loosened. The Defendants argued that the Plaintiff should be required to sit for a deposition in the Defendants’ chosen forum. In addition, Defendants argued that travel restrictions in Singapore precluded the Defendants from taking the corporate depositions in Singapore; thus, in-person depositions should take place in New Orleans.
Defendants further argued that the depositions should proceed in person because it was anticipated that the depositions would be very document intensive, which would render video depositions ineffective and impractical.
Defendants further argued that allowing the depositions to be taken via video would cause difficulty in their ability to communicate with the witnesses and would hamper the Defendants’ ability to assess the credibility of the witnesses since the plaintiff’s corporate deponents were non-English speakers.
Court Grants Motion to Conduct Depositions Via Video Conference
The court began its analysis by noting that “[c]ourts across the country have recognized that the COVID-19 pandemic is requiring attorneys and litigants all to adapt to a new way of practicing law, including conducting depositions and deposition preparation remotely.” Grano v. Sodexo Mgmt., Inc., No. 18CV1818-GPC(BLM), 2020 WL 1975057, at *3 (S.D. Cal. Apr. 24, 2020); see also In re Broiler Chicken Antitrust Litig., No. 1:16-CV-08637, 2020 WL 3469166, at *5 (N.D. Ill. June 25, 2020) (finding unless the Court is going to stay all depositions, which it was unwilling to do on a blanket basis, “the parties and their counsel are going to have to adapt, make some choices, be creative, and compromise in this and every other case in which they are involved during this time without modern precedent” until such time as there is a cure, or a vaccine for COVID-19, or something approaching so-called herd immunity). The court further noted that “[a] video deposition and remote preparation for [deponents] may be much safer and allow for more flexibility than in-person sessions.” In re Broiler Chicken, 2020 WL 3469166, at *2 (noting even as stay-at-home orders have been relaxed or suspended that many lawyers continue to work from home, and, despite these difficulties, accommodation is the answer rather than a complete cessation of discovery activity until the COVID-19 pandemic abates).
Based on the above considerations and relevant case law, the court found that the health concerns caused by Covid-19 constituted “good cause” for allowing the depositions to proceed remotely via videoconference. In so ruling, the court stated that it was reluctant to wait until travel restrictions were loosened as there is “no clear end in sight.”
However, the court agreed with the Defendants that there are certain inherent challenges in conducting depositions remotely. Accordingly, the court implemented certain rules/protocol for the remote depositions, such as forbidding counsel from texting or emailing witnesses during the deposition to help them respond to questions, requiring the cameras to be enabled at all times, and requiring all documents and exhibits to be shared with all counsel at least 10 days before the depositions.
The case is Antares Maritime PTE Ltd. v. Board of Commissioners of the Port of New Orleans, et. al., Court No. 18-12145 Section “D” (4), decided on November 30, 2020 in the United States District Court for the Eastern District of Louisiana.
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