#CaseoftheWeek Episode 42: Conducting In-Person vs. Remote Depositions

Doug Austin of eDiscovery Today joins us for episode 42 of Case of the Week. During the 30-minute episode analyzes Berkeley*ieor v. Teradata Operations Inc. Doug will be discussing how the Court addresses a dispute between the parties over whether depositions should be conducted in-person or remotely.

Of course, Kelly played college basketball, and I only got off the bench in my high school team during garbage time, so I’m grateful to Kelly and eDiscovery Assistant for some meaningful minutes for a change. Through eDiscovery Assistant’s partnership with ACEDS, we choose a recent decision in eDiscovery each week that highlights key issues for litigators and those involved in the discovery process, and we talk about the practical implications of that decision for you, your practice and your clients. We’ve got a fun case with a fun judge to talk about this week, and we’ll get to that in a minute.

First, I should note that a link to the decision is in the comments section of whatever platform you’re viewing this in. Whether that’s LinkedIn, YouTube, Twitter, or Facebook. There’s also a link to eDiscovery Today’s coverage in this case as well, and as Kelly kindly mentions every week, you can also view a link to the 2020 Case Law Year in Review report that eDiscovery Assistant and eDiscovery Today jointly published earlier this year. As we’re getting closer to the end of the year, it’s worth noting that next year’s report will be even bigger, as both eDiscovery Today and #CaseoftheWeek have been covering cases all year long. Look for that early next year.

We also invite you to check out the recently updated website at eDiscoveryAssistant.com. Hop over and sign up for the blog to receive our weekly news, case law newsletter and regular blog post about all things eDiscovery. With that said, let’s get into this week’s case, which is 𝐁𝐞𝐫𝐤𝐞𝐥𝐞𝐲*𝐢𝐞𝐨𝐫 𝐯. 𝐓𝐞𝐫𝐚𝐝𝐚𝐭𝐚 𝐎𝐩𝐞𝐫𝐚𝐭𝐢𝐨𝐧𝐬, 𝐈𝐧𝐜. This ruling was issued by Illinois Magistrate Judge Jeffrey Cole, who has 63 case rulings on eDiscovery Assistant and is one of my favorite judges to cover when it comes to eDiscovery.

His rulings might include pop culture references as diverse as William Shakespeare and Ron Burgundy, and even when they don’t, his direct blunt style with Litigants and Counsel, and his rulings usually make for interesting reading, as well as being notable from the eDiscovery best practices standpoint.

This is a patent infringement case filed in 2018 and Berkeley’s Nevada Corporation that provides consulting services specializing in the design and development of large scale decision support solutions. Richard Lettman is Berkeley’s President and the named inventor for the patents that are at issue in this case, which have to do with a method that calculates profitability associated with the smallest common component of profit measurement desire the profit object. I don’t quite understand that myself, but it sounds interesting.

Anyway, Berkeley began providing consulting services to NCR Corporation back in the 90s. For those of you that may not be familiar with NCR, the company was originally founded as National Cash Register back in the 1880s, but they eventually evolved into a technology company.

Today they have about as much to do with cash registers as AT&T has to do with the telegraph. Lettman worked on an improved profitability measurement solution that both Berkeley and NCR could bring to market, and they did so in 1999, when the Royal Bank of Canada implemented the first commercial version, which received a lot of industry acclaim, and it was eventually named the Teradata Value Analyzer (or TVA).

In June 1999, Berkeley and NCR executed a licensing agreement that allowed NCR limited use of the TVA. Teradata was originally formed as a collaboration between researchers at Caltech and City Bank Advanced Technology Group as a division within both NCR and AT&T offering data, analytical products and services and was spun off as an independent company in 2007, taking the licensing agreement with them.

Berkeley began raising patent infringement concerns with Teradata as early as 2009, when they sent a letter to Teradata and asked for a meeting to discuss sales of TVA that fell outside of the licensing agreement.

During that meeting, Teradata allegedly took the position that some of its customers were discontinuing use of the TVA and that they were not infringing on Lettman’s patent. However, after that, Berkeley alleged that Teradata went on to partner with Granger and implement the TVA software in 2010 and did the same with DHL Express in 2013. So Berkeley filed the case in 2018 against Teradata, Granger, DHL Express, Danzas and Air Express, but the Court severed and stayed the actions against the non Teradata defendants, leaving this case specifically against Teradata.

So, that takes us to the ruling by Judge Cole on August 12th, which was on Berkeley’s motion to compel filed at the end of July. Berkeley’s motion to compel involved three requests.

The first request and probably the most notable request, had to do with Rule 30(b)(1) Rule 30(b)(6) in-person depositions of Nancy Kalthoff, who was a former Teradata employee. Not everybody realizes that a person being deposed as a 30(b)(6) witness on behalf of the company doesn’t actually have to currently work for the company or have ever worked for the company. Per the rule they can be one or more officers, directors, or managing agents or other persons who consent to testify on the organization’s behalf. As long as the 30(b)(6) witness is able to testify to the issues to be covered in the 30(b)(6) deposition, they can serve as a witness. All you may think it’s odd that Teradata chose a former employee to be it’s 30(b)(6) witness. It’s certainly not unprecedented.

That wasn’t the sticking point, though. It was that Berkeley wanted the depositions to be conducted live and in-person and suggested that they could be done near Kalthoff’s home in California, but Berkeley also refused to do consecutive days due to child custody issues for one of its attorneys. That meant that opposing counsel for the defendant located in Illinois, which is where the case was filed, would have to make an 1800-mile airline trip between Chicago and California four times to support two in-person depositions a week apart, during a pandemic.

And as you’ll probably recall, because it wasn’t that long ago around the time leading up to this motion and when it was filed in late July, the Delta variant was causing another spike in Covid cases, and some events that were starting to be planned in-person had to reverse course. A case in point is next week’s ARMA InfoCon conference where I’ll be speaking at an ACEDS sponsored session on Monday with Kevin Clark and Judge Xavier Rodriguez. That was supposed to be an in-person conference in my hometown of Houston, but because of the Delta varying COVID spike, they reverted to a virtual conference. So, it’s no surprise that Teradata objected to the trips, especially two round trips a week apart, and suggested the deposition instead could be completed remotely, but Berkeley disagreed and requested the Court to compel an in-person deposition on August 5th and 11th in California near Kalthoff’s home.

Berkeley’s second request involved depositions of two other non-party witnesses. In January of this year in Berkeley noticed the depositions of two additional fact witnesses pursuant to Rule 30(b)(1). Teradata promptly informed Berkeley that the two witnesses were no longer employees and that the defendant’s lawyers didn’t represent them anymore, but provided plaintiff with their contact information. So that meant Rule 45 for third party witnesses was applicable, not Rule 30, but Berkeley refused to subpoena the witnesses contending that since Kalthoff agreed to sit for depositions, the others should too, and requested the Court to compel the depositions.

Berkeley’s final request had to do with production of highly confidential documents. The parties argued over designation of documents for over a year, including the designation of documents is highly confidential instead of just confidential. As a part of that discussion, the parties eventually hammered out a stipulation from Lettman that neither he nor Berkeley are currently a competitor to Teradata or the TVA product, and were not currently working to create a product that competes with TVA.

Lettman also agreed that neither he nor Berkeley nor any other company in which he owns 50% or more the equity would compete with Teradata for two years after the completion of this litigation, would not use any of Teradata’s information for any purposes other than this litigation and would either return all Teradata’s documents to Teradata’s counsel or destroy all copies. In exchange, Teradata agreed to allow him to review the less than 900 out of a production of 23,000 documents. Highly confidential at issue, with the exception of 142 documents that were TVA installation files, source code, and documentation related to the Vantage product.

Because Berkeley wanted to review all of the documents that were designated as highly confidential, after working so hard to get the Stipulation agreement completed, they requested that Judge Cole compel Teradata to allow them to review those 142 documents as well.

So those are the facts associated with this motion. Let’s get into the analysis and rulings by Judge Cole, and we’ll start with the most notable issue first, which is the one on which Judge Cole spends the most time in this ruling. The request for in-person depositions.

As I mentioned before, Judge Cole is direct and sometimes even blunt, in his response to requests by parties before his court. He’s been known to shut down motions to compel by parties based on mere speculation that there’s more evidence available in discovery or reject boilerplate objections by stating boilerplate objections or tantamount to making no objection at all. Judge Cole gets right to the point with regard to Berkeley’s requests for in-person depositions when he says this:

For reasons that are all too obvious as the summer drew on and by the time Berkeley followed its motion to compel on July 23rd, live depositions, which were an unnecessarily risky idea in the first place, became a bad idea, and the thought of multiple airline trips to take the depositions became a terrible and unacceptable one. The pandemic continues in new cases, and hospitalization numbers have again soared as more contagious and virulent variation of the virus…

Great alliteration, Judge.

…is sweeping across the country and the world with terrifying results, causing some local governments to reinstitute restrictions on all facets of daily living. Berkeley’s unamplified assertion that there have been improvements in Covid-19 is essentially meaningless in the present context and ignores the reality of what’s occurring in the country today.

With regard to Teradata’s objection that asking the parties to travel twice for a deposition that completed on one day is inappropriate especially given the continued rising cases of Covid. Judge Cole stated:

Indeed, this position is in harmony with literally scores of cases reported in West Law that have refused to allow attorneys to take in-person depositions as opposed to video depositions during the worldwide pandemic. Berkeley has nonetheless deemed the defendant’s resistance unreasonable. In referencing a quote from Berkeley’s motion where it said, Teradata continues to refuse to present its fact witness and its Rule 30(b)6 witness Kalthoff in a reasonable manner. Berkeley’s motion asked the Court to compel two live depositions on August 5th and 11th in California near Miss Kalthoff’s home. That request is denied. We simply cannot and not not ignore the dire circumstances posed by the Pandemic.

So you would think that would be the end of it, but Judge Cole has more to say on the subject and a lot more. I’ll hit a few highlights here. He rejected Berkeley’s reference cases by stating, in short, “the cases in which a preference for live depositions were expressed were never intended to apply to the kind of dramatic and dangerous situation facing the county and the world today unless they do not control the present case.” He also stated that:

Plaintiffs motion overstates the necessity of having lawyers be physically present if the deposition is to have a real worth. Recalling that depositions weren’t even part of cases until the FRCP was adopted in 1935, and stating it is perhaps understandable that the physical presence of a lawyer at a deposition has been thought by some to be a necessary adjunct to the pursuit of truth. The reality is recent circumstances is shown is that cases ultimately do not depend on or demand the physical presence of a lawyer at a deposition as a prerequisite to the ascertainment of truth or the achievement of justice. Thus, we need not slavishly honor a request like that of the plaintiff demanding in-person depositions even in the midst of worldwide pandemic.”

Judge Cole also observes, “it cannot be too strongly stressed that depositions by remote means have been a feature of federal practice for many years. Their increased usage given the current pandemic should come as no surprise” That’s certainly true. I’m sure many of you out there have been a part of remote deposition since well before the pandemic. I certainly know I have.

Judge Cole concludes his ruling on the in-person deposition request part of the motion by stating this:

The wisdom under the present circumstances of a party demanding a live deposition of a witness and requiring opposing Counsel to make four 1800 miles airline trips is questionable, to say the least. Not only the optics, but the reality of the situation are even worse, as the plaintiff is demanding two separate round trips to California for the convenience of one of its attorneys. As indicated this portion of Berkeley’s motion is denied. Miss Kalthoff’s deposition can be taken by video conference, as can the 30(b)(1) and 30(b) depositions. And again, to be clear, Berkeley is entitled to two seven hour sessions if need be. The dates of these depositions will be decided upon by Counsel for both sides.”

Judge Cole rejected Berkeley’s in-person deposition requests in just about any way every way you can. He rejected it from a common sense standpoint given the pandemic, he also rejected it from a standpoint of noting literally stores of cases reported in west law that had refused in-person depositions. He rejected it from a standpoint that in-person depositions are necessary for justice by reminding us that we didn’t even use to have depositions in cases, and he rejected it by reminding us that we’ve had remote depositions for years. So he rejected that request in about every way that a request can be rejected.

Judge Cole moves on to the request to compel the depositions of two other non-party witnesses, and he rejects this request rather quickly compared to the first request within a single paragraph in his ruling, and despite the fact that two witnesses were now non-party witnesses under Rule 45, Judge Cole stated that:

Berkeley dug in and refused to subpoena the two witnesses for months. In Berkeley’s view, because former employee Miss Kalthoff agreed to sit for depositions, former employees Mr. Fips and Miss Neesan ought to have made the same concessions, but they didn’t, and they were not obligated to do so. Berkeley had about five months to subpoena the two witnesses before discovery closed. It didn’t even attempt to do so. Without a subpoena having been properly and timely served, a court simply cannot compel the two non-party witnesses to attend depositions. This portion of Berkeley’s motion is also denied.

While it was addressed much more briefly by Judge Cole, the ruling on this request might even be more important from Berkeley’s point of view. At least they can still depose first witness, albeit not in the manner they prefer, but they could still manage to gather important info from her. They’ve lost the ability to do that with these witnesses simply because they chose not to subpoena them when they usually could have done so.

That leaves the request for highly confidential documents. Will Berkeley go 0-3? Nope, this time actually Judge Cole is more responsive to the request, and he raises a couple of reasons here. He starts by stating:

To support its refusal to allow access to these last 142 or so documents, Teradata relies that disclosure of the last 142 documents with significantly harmed its competitive position. But then what was the point of the stipulation in the year long ordeal that finally led to it? Teradata wouldn’t redesignate the other 758 documents designated highly confidential due to potential for competitive harm if Mr. Lettman had access to them unless Mr. Lettman stipulated that he wasn’t competing with Teradata and would not do so for two years until after this case was over. I failed to see the distinction between the 758 documents Teradata claimed were highly sensitive documents and the 142 highly sensitive documents left at issue unless, as Berkeley has been claiming all along, Teradata over designated the 758 in the first place. The stipulation drafted in the main by Teradata and the arduous process that went into it have to have some meaning. Teradata stance drops it if any. This portion of Berkeley’s motion is granted and Teradata must produce the remaining documents as well as TVA customer contracts subject to the stipulation.

That was the justification Judge Cole gave to the decision, but then he also had this statement. “Teradata has waived any argument it might have had regarding production of those contracts by failing to raise it in response to Berkeley’s motion. So, Teradata’s lack of response with where under the contracts made a procedural moot point.”

As I’ve learned from working with Judge Peck on monthly case law webinars for EDRM, judges like belt and suspender reasons for the rulings. So if one is over it ruled on appeal. The other one is still there as backup, and that’s a great segue into our takeaways.

The first takeaway is don’t get so insistent on Plan A that you cut yourself off from being able to take advantage of Plan B. Berkeley may not have preferred to conduct a remote deposition, but at least they still have an option that is an option for 30(b)(1) and 30(b)(6) depositions of Kalthoff. But Berkeley lost any Plan B option when it came to the other two 30(b)(1) deponents because they insisted that those deponents should have agreed to a 30(b)(1) deposition when they were under no obligation to do so.

Berkeley could have pursued the 30(b)(1) deposition until close to the deadline, then exercise the fallback option of issuing a non party subpoena for their testimony. The failure to subpoena those witnesses at all lost them the ability to interview them at all.

My second takeaway is to stay flexible when it comes to leveraging technology to support changing needs. If we’ve learned anything during this pandemic, we’ve learned that sometimes we have to rely on technology to provide a reasonable substitute for activities we’re used to conducting in-person. Take meetings on Zoom and Teams, usage of those platforms is way up since the pandemic, because that’s the only way we can conduct many meetings that we’ve been used to conducting in-person. Those platforms were used before the pandemic, but they’ve made total sense to leverage when the pandemic hit. Same with depositions.

We’ve been conducting remote depositions for years, but they make so much more sense now during the pandemic. There’s a slew of best practices, articles and resources out there for conducting remote depositions. All you need to do is Google “Best Practices remote depositions” and you’ll find a bunch. I know I did, and they’ll cover things like testing the technology beforehand, allowing more time for technical glitches, communicating expectations with regards to things like presentation of exhibits, security and Internet connection requirements, getting parties to stipulate that they won’t challenge the deposition simply because it was one remotely and so forth. Not to mention treating it with the same professionalism that you would for an in-person deposition in terms of dress code, background for the video and so forth. In other words, planning and preparation are important just as they are for an in-person deposition. Only in this case that planning and preparation will include technology and logistics considerations uniquely associated with the remote deposition.

The next takeaway would be pick your battles. Is insisting on in-person depositions requiring Counsel to make multiple trips across the country during a pandemic the place where you want to take a stand and fight our battles, or do you want to save it for more substate disputes regarding the evidence? Judge Cole began his ruling by noting that it had been a rather contentious several months before the parties pared down and crystallized their discovery disputes to a point that they could be finally addressed in an appropriate motion to compel. Excessive disputes, make judges cranky, and as I’ve heard several times on case law panels with Judge Peck, it’s never a good thing to piss off the judge.

Finally, keep in mind the rule of common sense. Judge Cole’s ruling on rejecting the request for in-person deposition was a common sense ruling based on the times we live in and the current state at the time of the Covid pandemic and the increased cases of it due to the Delta variant. His ruling wasn’t based on the rule of law. It was based on reasons that are all too obvious. Judge Cole stated that it bears repeating that courts cannot ignore the setting in which they’re called upon to make a decision regarding the permissibility of contemplated conduct, and he did so in considering the state of the world and making a ruling based on common sense by rejecting the request for an in-person deposition that didn’t fit within the current setting. You can only base so much of an argument on the rule of law, when common sense would refute that argument.

We’ll be back next week with another episode of the #CaseoftheWeek from eDiscovery Assistant. If you’re an ACEDS member and interested in using a eDiscovery Assistant, there’s a discount available to current ACEDS members and a free trial for folks taking the ACEDS exam. If you’re interested in either of those, send an email to ACEDS@eDiscoveryAssistant.com and one of the team will be in touch. If you’re interested in doing a free trial of eDiscovery Assistant’s Case Law and Resource Database […], sign up to get started.

Thanks to Kelly Twigger for letting me keep the seat warm for her and thanks to eDiscovery Assistant and ACEDS as well. Have a great week and stay safe and healthy out there.

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