As the courts continue their efforts to re-open and slowly return to "normal" operations, decisions aimed to these ends are emerging. One such decision was recently issued by a New York state court in a medical malpractice case, whereby medical professionals were ordered, over their objections and despite the protections of New York Administrative Order 88/20, to appear for remote depositions. Separately, Administrative Order 88/20 has since been repealed. In an apparent shift towards remote depositions, the medical malpractice decision indicates that New York state courts may interpret their authority over the conduct of discovery expansively as the COVID-19 pandemic continues, and may use that expansive interpretation to compel the remote depositions of all types of witnesses, not simply those in the medical profession.
As we wrote here, on May 2, 2020, the New York State Court system issued Administrative Order 88/20.1 The Administrative Order provided that New York courts "shall not order or compel, for a deposition or other litigation discovery, the personal attendance of physicians or other medical personnel . . . who perform services at a hospital or other medical facility that is active in the treatment of COVID-19 patients."2 The Administrative Order also stated that "[p]arties are encouraged to pursue discovery in cooperative fashion to the fullest extent possible."3 On June 22, 2020, the Court system rescinded Administrative Order 88/20, while continuing to urge parties "to pursue discovery in a cooperative fashion and to employ remote technology in discovery wherever possible."4
Prior to the rescission of Administrative Order 88/20, a New York State Court addressed the issue of whether medical personnel could be required to appear for a remote deposition.5 The plaintiff had sued a medical center, a hospital and two individual doctors, alleging medical malpractice. After the parties failed to agree on deposition scheduling, the plaintiff moved for a court order requiring the defendants to appear for remote depositions.6
The court began its analysis by reviewing the language of Administrative Order 88/20. The court held that "the plain meaning of the term 'personal attendance' within Administrative Order 88/20, is unambiguous and clear that said medical personnel can and should appear for depositions remotely. . . ."7 The court further held that "requiring depositions to be conducted by remote electronic means is neither novel nor without legal authority, or beyond The Courts [sic] authority pursuant to" Section 3103(a) of New York's Civil Practice Law and Rules.8 The court directed that defendants' counsel could be personally present with the witnesses during the depositions, however, in order to "alleviate[]" defendants' "claims of prejudice."9
Administrative Order 88/20 did not explicitly state that courts can compel medical personnel to attend remote depositions, only that they cannot compel those personnel to attend in-person depositions. Although Administrative Order 88/20 has now been rescinded, the court's willingness to interpret the Order and its own discovery authority broadly indicates that New York state courts may continue to compel remote depositions during the pandemic, and may be even more willing to do so in cases not involving medical professionals, such as in commercial litigation.
Footnotes
1 https://www.nycourts.gov/whatsnew/pdf/AO-88-20.pdf.
2 Id.
3 Id.
4 https://eriebar.org/wp-content/uploads/2020/06/AO-129-20.pdf.
5 Melkonian v. Albany Medical Center, et al., Index No. 908059-19, Dkt. No. 34 (N.Y. Sup. Ct. Albany Cty. June 3, 2020)
6 Id. at 1.
7 Id. at 2.
8 Id.
9 Id.
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