Episode 180 - A Deposition Noticed for Remote Examination Doesn’t Prevent you from Attending in Person

It's a common question. If the examining lawyer says they're going to depose witnesses by remote video, and notices it that way, does this obligate you (and all other counsel) to likewise appear remotely? Or can you still freely appear in person if you wish? Listen in for critical insights into the issue, supported, as always, by research on point in the show notes, including both cases and citations to applicable rules. Thanks for listening!

SHOW NOTES

Thomas v. Communication Workers of America Local 3510, No. 4:25-cv-159-JDM-DAS, 2026 WL 2807142 (N.D. Miss. Sept. 18, 2026) (plaintiffs sought order requiring deposition to be conducted remotely and forbidding defendants from appearing in person with them; held, plaintiff could not force its wishes for remote deposition on a party that wished to appear in person, as partie has not stipulated to remote means under Rule 30(b)(4); nothing improper in counsel’s desire to observe the deponent; any party has the right to be physically present with the deponent even at a remote deposition)

Cressler v. Neuenschwander, 170 F.R.D. 20,22 (D. Kan. 1996) (“The court finds that the best solution in this case is to grant the plaintiff's motion for an order allowing the taking of the depositions of [several doctors], but to deny the plaintiff's request that the court order that neither plaintiff's counsel nor defense counsel attend the depositions in person. The plaintiff has provided the court with no authority, and the court has located none, which would restrain the defendant from being present during these depositions. See 4A James W. Moore, Moore's Federal Practice ¶ 30.09[5], at 30–114 n. 20 (2d ed. 1996) (Rule 30(b)(7) does not specify that a party may not be present during a telephonic deposition; so long as the voices of all the participants are transmitted, the deposition may fairly be characterized as taken by telephone under the rule). “[I]f the party seeking the deposition is prepared to conduct its portion without a face-to-face encounter with the witness, there is no reason not to permit it to do so, with any other party free to question the witness in person, thus avoiding any prejudice while reducing expenses.” Fireman's Fund, 1994 WL 583173, at *1; see also Jahr, 109 F.R.D. at 432 n. 4 (where plaintiff lacked financial resources and defendant was concerned about lack of face-to-face questioning, procedure by which plaintiff took deposition over the telephone and defendant appeared in person “would eliminate all of defendants [sic] concerns and still accommodate plaintiff's desires as well”).

Loughin v. Occidental Chemical Corp., 234 F.R.D. 75 (E.D. Pa. 2005) (party opposing telephonic depositions could cure any prejudice from lost demeanor evidence by traveling to the deponents’ locations and attending in person)

Moore v. Ford Motor Co., 755 F.3d 802 (5th Cir. 2014) (magistrate judge’s non-dispositive order set aside only if clearly erroneous or contrary to law; Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A))

Rule and Committee Notes

Fed. R. Civ. P. 30(b)(4) (“The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.”)

Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (“Paragraph (7) is revised to authorize the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court.”)

Fed. R. Civ. P. 26(c) (protective orders specifying terms, method, and persons present for discovery)

Fed. R. Civ. P. 72(a) (review of magistrate judge’s non-dispositive orders)