Do Not Label a Deposition as Taking Place in a Zoom Video Conference
Video-conferencing platforms, including Zoom, are frequently used by to designate the place of depositions. Recent case law has invalidated the common uses of the Zoom phrase, which purports to require a person to appear for a deposition “VIA ZOOM VIDEO CONFERENCE”. The phrase “VIA ZOOM VIDEO CONFERENCE” is not a legal designation of a “place” for purposes of compliance with Rule 45(c), Federal Rules of Civil Procedure. What this means is that if you are using Zoom (or any other videoconferencing software) to take depositions, you should avoid using that phrase, and instead refer to the location where the deposition is taking place.
Rule 45(c) of the Federal Rules of Civil Procedure sets out the place conditions for taking a deposition:
“(c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense.”
A few district courts have recently considered the issue of the legality of designating the Internet, ie. Zoom, as a place for depositions. They have found the phrase “VIA ZOOM VIDEO CONFERENCE” does not satisfy the requirement of Rule 45(c). As a result, litigants should be careful to not use this term in their notice of deposition or other subpoena, or they may find that their deposition will not be able to proceed as planned. There will be no place for a court with proper jurisdiction to enforce the subpoena. There is no district court for the Internet, although maybe someday Zuck’s dreams of a fully functional metaverse may come true. But for now, only “real world” places are legal.
Lawyers should be aware of the recent case law surrounding the use of the phrase “via Zoom video conference.” Recent decisions by the U.S. District Court for the Southern District of California in Federal Insurance Co. v. Tungsten Heavy Powder & Parts Inc. and by the U.S. District Court for the Western District of Pennsylvania in Frobe v. UPMC St. Margaret are on point. They invalidated the common use of the phrase requiring a person to appear for a deposition by online means without stating a physical address. Cyberspace is not a place, not legally anyway.
In Federal Insurance Co. v. Tungsten Heavy Powder & Parts Inc., the court invalidated the use of the phrase “VIA ZOOM VIDEO CONFERENCE” to designate a deposition, holding that Zoom is not a legal designation of a “place” for purposes of compliance with Rule 45(c) of the Federal Rules of Civil Procedure. Similarly, in Frobe v. UPMC St. Margaret, the court held that Zoom is not a legal designation of a “place” for purposes of taking a deposition under Rule 30(b)(6) of the Federal Rules of Civil Procedure. This error made it impossible to enforce the deposition subpoenas.
There is a big difference between the real world and the virtual one. If you’re planning on using Zoom or other conferencing service for your next deposition, be sure to specify the actual location where the flesh and blood deponent will sit. That is where the deposition will take place, not in the Internet, not in Zoom,or cyberspace, but real space. Sorry, Metaverse, but you are not a real place in the eyes of the law, no matter what Zuck says!
Since “Zoom” and other online conference services are not a legal designation of a “place” for purposes of Rule 45(c), you need to be careful and use the correct language in your deposition notices. Instead of requiring a person to appear for a deposition “VIA ZOOM VIDEO CONFERENCE,” simply use the person’s home or office address as the place of deposition. Then describe the conference connections as the method for communication.
Plus, don’t forget, you still need counsel’s consent, or local rules and orders, to use online services like Zoom instead of what Rule 45(c) says or implies, in-person. But that is a subject for another day.
Right now my little AI helper is getting tired. (Couldn’t you tell it wasn’t me? I just started using hypotenuse.ai. So far I like it.) I imagine the AI writer was recently in a crash, got t-boned in a high speed net traffic accident. The Human he is writing for (with) was t-boned too, for real. Yup, I was in a crash in the real world, not in Zoom-world. There is a big difference in the crashes of a computer and a fragile human like me! My AI writing helper feels no pain. But for me, eleven days after the accident, it still hurts. Unlike my AI, the human author here must wear a hard neck brace 24/7 for six F’ing weeks! Try sleeping in the dam thing. Five and a half weeks left to go, minimum.
Until AI takes over driving and won’t let negligent humans run red lights, these accidents are inevitable. See: Robophobia: Great New Law Review Article – Part 1. Too many humans these days are phone zombies and do not pay attention to the real world, even when driving. The risk of accidents is growing every day. Take special care at intersections. Do not assume the other drivers will follow the rules and stop at red lights. Still, I am grateful that the young girl who hit me crashed into the driver’s side, rather than the passenger side, where my wife was sitting. She was bruised and injured too, but not as badly. I am really grateful a grandchild was not in the car with us. Also, glad that we were hit only two blocks from our local hospital and the good service the paramedics, ambulance driver, nurses and doctors provided. Thanks also to the unknown stranger who helped me out of the car, and to whoever it was that kept asking me if I knew who the president was, or what year it was? I later wondered if the former was a political question. Concussions are very strange.
I try to look on the bright side of things. Although my Mercedes was totaled, the big, sturdy monster saved me from much worse damage. (An AI at my wheel would not have made any difference in this situation.) So now, I must get a new car Christmas present. Know any good AI vehicles not built by Elon? Preferably an armored vehicle. I really must overcome my Robophobia now.