272 F.R.D. 385
S.D.N.Y.2011Background
- The action is an admiralty wrongful-death suit arising from Vasilijs Gerasimenko’s death aboard the M/T INDRA on August 27, 2008, against Cape Wind, Latvian Shipping, and LSC.
- Larisa Gerasimenko, the decedent’s wife, seeks damages including lost wages, loss of benefits, pain and suffering, and loss of companionship as the nominated beneficiary of her husband’s employment contract.
- Gerasimenko has been unemployed since 2008; Riga Social Services designated her as low income in need, impacting her ability to travel for deposition.
- Defendants noticed depositions of their 30(b)(6) witnesses to occur in New York, and Plaintiffs noticed Ms. Gerasimenko’s deposition for New York, with no agreement on remote alternatives.
- Defendants recently provided Gerasimenko with a death-benefit settlement of $89,100, raising questions about indigence, while the court weighs financial hardship against potential prejudice to defendants.
- There was a court-ordered non-expert discovery deadline by March 31, 2011, and the matter was presented to the court for resolution on remote-deposition issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ms. Gerasimenko’s deposition may proceed remotely. | Gerasimenko’s indigence and travel hardship justify remote deposition. | Remote deposition prejudices defendants and may impair ability to observe demeanor; travel is feasible using death-benefit funds. | Yes; Ms. Gerasimenko’s deposition shall proceed by telephone or remote means. |
| Whether 30(b)(6) witnesses may be deposed by telephone. | Remote depositions promote efficiency and reduce cost where witnesses reside remotely. | Prejudice or loss of effectiveness if witnesses are deposed remotely; need in-person reliability. | Yes; Defendants’ designated 30(b)(6) witnesses may be deposed by telephone. |
| Whether the court should require any follow-up in-person deposition if remote deposition proves inadequate. | Remote deposition may be insufficient; in-person follow-up should be possible if necessary. | Remote deposition should suffice; in-person follow-up should be reserved for due to failure of remote method. | The Court may require in-person follow-up only if a meaningful deposition cannot be conducted by telephone or video. |
Key Cases Cited
- Clem v. Allied Lines International Corp., 102 F.R.D. 938 (S.D.N.Y. 1984) (extreme hardship required for telephone deposition; balance costs)
- Zito v. Leasecomm Corp., 233 F.R.D. 395 (S.D.N.Y. 2006) (telephonic depositions permissible with cost/translate considerations; proximity of witnesses)