Noticing a Deposition in a Foreign Country in New York

What Are the Laws on Noticing a Deposition in a Foreign Country?

Background

A deposition is defined as a disclosure device. (Civ. Prac. Law & Rules, § 3102(a).) There is a presumption that a deposition should be live and in the county in which the action is pending. (Rogovin v. Rogovin, 3 A.D.3d 352 [1st Dept. 2004].)

A deposition in a foreign country “may be taken” before “any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds.” (Civ. Prac. Law & Rules, § 3113(a)(3).)

How to Structure the Motion

When a party to the action is to be deposed, the deposition should take place within the county where the action is pending. (Civ. Prac. Law & Rules, § 3110[1].) Moreover, “a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result.” (Farrakhan v. N.Y.P. Holdings, 226 A.D.2d 133, 135-36 [1st Dept. 1996].)

“While depositions of the parties to an action are generally held in the county where the action is pending, if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere.” (LaRusso v. Brookstone, Inc., 52 A.D.3d 576, 577 [2nd Dept. 2008]; Gartner v. Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815 [2nd Dept. 2009].) It should be noted that the need to travel, including significant distances, alone does not constitute undue hardship. (Born to Build LLC v. Saleh, 115 A.D.3d 780 [2nd Dept. 2014].)

Parties may stipulate to conduct a deposition in a foreign country by electronic means. (Civ. Prac. Law & Rules, § 3113(d).) Advances in technology have made videoconferencing a cost-effective alternative to paying the costs of travel for counsel or witnesses to depositions, particularly where the witness is not a resident of the state or country. (Matter of the Estate of Balbir Singh, 22 Misc. 3d 288 [Sup. Ct. Bronx Co. 2008].)

The Court’s Decision

Section 3113(d) of Civil Practice Law and Rules has been interpreted to provide that although one party cannot insist upon conducting a deposition by electronic means without a court order, its provisions do not circumscribe the discretion of the court to order a deposition by such means in the interest of justice where to rule otherwise would create hardship upon the parties being deposed. (Matter of the Estate of Balbir Singh, 22 Misc. 3d 288 [Sup. Ct. Bronx Co. 2008].)

There is abundant precedent under the decisional law of New York for granting protective orders requiring that non-resident plaintiffs’ depositions be taken outside the jurisdiction or by methods other than face-to-face depositions on oral questions. (Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818 [2nd Dept. 2011]; Nama Air Cargo Co., Ltd. v. Unitrans Consol. Inc., 208 A.D.2d 604 [2nd Dept. 1994]; Ascona CIE, Anstalt v. Horn, 32 A.D.2d 755 [1st Dept. 1969].) New York courts have also routinely permitted the deposition of a witness by electronic means when the witness lives outside the jurisdiction and travel to the area would present an undue hardship. (Rogovin v. Rogovin, 3 A.D.3d 352 [1st Dept. 2004].)

Although the preferred practice, except in cases where hardship is shown to exist, is to proceed with examinations here, a preferred practice is not the same as an inflexible rule. (Gryphon Domestic VI, LLC v. APP Intern. Finance Co., B.V., 52 A.D.3d 219 [1st Dept. 2008].) It is within the discretion of the court to determine whether a party has demonstrated the requisite undue hardship warranting a protective order directing the party’s deposition be held outside of New York by video conference or other remote means. (Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818 [2nd Dept. 2011].)

Monetary Awards

“Unless stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges shall be borne by the party requesting that the deposition be conducted by such means.” (Civ. Prac. Law & Rules, § 3113(d).)