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In the Age of Zoom, Can You Be Forced to Attend a Distant In-Person Deposition?

By April 24, 2023No Comments

The Florida Rule of Civil Procedure 1.310 states that “[a] deposition may be taken by communication technology, as that term is defined in the Florida Rule of General Practice and Judicial Administration 2.530, if stipulated by the parties or if ordered by the court on its own motion, or on motion of a party.” Fla. R. Civ. P. 1.310(b)(7).

Pursuant to Rule 2.530, the Court “may authorize the use of communication technology for the presentation of testimony or for other participation in a proceeding upon the written motion of a party.” Fla. R. Gen. Prac. & Jud. Admin. 2.530(b).

In determining whether to authorize the use of communication technology, the Court may consider “the resources of the parties,” “the geographic location of the witness,” and “the cost and inconvenience in requiring the physical presence of the witness.” Fla. R. Gen. Prac. & Jud. Admin. 2.530(b)(2)(A).

Depositions in Florida: Where Must They Take Place?

In general, “a person may only be required to attend a deposition in the county where he or she resides, is employed, or transacts business in person.” U.S. Bank, Nat’l Ass’n v. Williamson, 273 So. 3d 190, 191-92 (Fla. 5th DCA 2019). “A plaintiff is generally required to be deposed in the forum where the action is pending.” Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993). On the other hand, “[a] defendant will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief.” Dan Euser Waterarchitecture, Inc. v. City of Miami Beach, 112 So. 3d 683, 683 (Fla. 3d DCA 2013). Instead, “the deposition of a representative of a corporate defendant is ordinarily taken at the corporation’s principal place of business.” Santelli, 621 So. 2d at 547.

Presented with this situation, the First District Court of Appeal refuses to compel a plaintiff’s in-person deposition, explaining, “We certainly understand the logic of FHP’s argument. It is absolutely correct that a plaintiff is generally required to be deposed in the forum where the action is pending. After all, because Mr. Bejarano chose to file a lawsuit in Florida, it stands to reason that he may reasonably be required to appear there for the taking of his deposition. But the law is not absolute on this point. Instead, it gives the trial court discretion to grant protective orders for good cause shown to protect a party from undue burden or expense.”Fla. High. Patrol v. Bejarano, 137 So. 3d 619, 621-22 (Fla. 1st DCA 2014) (internal citations and quotations omitted).

In Bejarano, even though the deposition was not “completely prohibitive” for the plaintiff’s time, or cost-wise, the court concluded that accommodating his request for a video conference deposition wasn’t an abuse of discretion. Id. at 622. The court also noted no prejudice on the party seeking to compel the in-person deposition, stating it could still conduct the deposition “from its choice of locale, using a video conferencing company of its own choosing.” Id. at 621.

Video Conference Depositions: When are They Favored by the Law?

As seen, the law favors taking video testimonies when the party seeking the testimony is trying to force the witness to travel a great distance. This is not to say that there won’t be exceptions, but as a general matter, it appears that you should be able to defeat a litigant’s motion to compel your testimony in-person, when the in-person would require you to travel far.

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