Noticing an Out of State Deposition in New York

What Are the Laws on Noticing an Out of State Deposition?

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].) However, an out-of-state deposition may be permitted under certain circumstances. (Hoffman v. Kraus, 260 A.D.2d 435 [2nd Dept. 1999].)

How to Structure the Motion

“The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such an order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” (Civ. Prac. Law & Rules, § 3103; Ural v. Encompass Ins. Co. of Am., 158 A.D.3d 845, 847 [2018].)

Generally, when a party to the action is to be deposed, the deposition should take place within the county where the action is pending. (LaRusso v. Brookstone, Inc., 52 A.D.3d 576 [2nd Dept. 2008].) An exception to this rule is where a party demonstrates that examination in that county would cause undue hardship. (Id.) Conclusory assertions of hardship asserted by the attorney are not sufficient to demonstrate undue hardship necessary to justify an out of state deposition. (Rodriguez v. Infinity Ins. Co., 283 A.D.2d 969 [4th Dept. 2001].) 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]; Cooper v. Met Merch., 54 A.D.2d 859 [1st Dept. 1976].)

Parties may stipulate to conduct an out-of-state deposition 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].) A deposition may also be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state. (Civ. Prac. Law & Rules, § 3108.)

The Court’s Decision

The outdated notion that depositions or testimony can only be effective if taken face to face has been dispelled by the courts. (People v. Wrotten, 14 N.Y.3d 33 [2009]; Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818 [2nd Dept. 2011]; Mack v. Travis, 283 A.D.2d 700 [3rd Dept. 2001].) Courts are not hesitant to order that a deposition be conducted by electronic means or otherwise if it would obviate an undue hardship on parties. (Rogovin v. Rogovin, 3 A.D.3d 352 [1st Dept. 2004]; Nama Air Cargo Co., Ltd. v. Unitrans Consol. Inc., 208 A.D.2d 604 [2nd Dept. 1994].) No prejudice exists when a deposition is held by video conferencing. (Provident Life & Cas. Ins. Co. v. Brittenham, 283 A.D.2d 629 [2nd Dept. 2001].)

Documents for Noticing an Out of State Deposition in New York

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Mayville Engineering Company, Inc. v. Peloton Interactive, Inc. document preview

EXHIBIT(S) - 5 - Peloton's Subpoena to Deere & Company, Inc.

109 pages

FILED: NEW YORK COUNTY CLERK 12/05/2023 04:34 PM INDEX NO. 652735/2022 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 12/05/2023 Exhibit 5 FILED: NEW YORK COUNTY CLERK 12/05/2023 04:34 PM INDEX NO. 652735/2022 NYSCEF DOC. NO. 185 RECEIVED NYSCEF:…

Case Name Mayville Engineering Company, Inc. v. Peloton Interactive, Inc.