The dangers posed by the COVID-19 pandemic call for lawyers in a copyright-infringement dispute to conduct a deposition by remote videoconference rather than in an Arkansas conference room, a federal judge in Chicago held Tuesday.
In a written opinion, U.S. Magistrate Judge Jeffrey Cummings wrote that requiring Walmart Inc.’s lead attorney to fly from Chicago to Arkansas to hold a deposition in a room with lawyers from New York and Texas would create unnecessary health concerns.
Quoting Usov v. Lazar, No. 13 CIV 818, 2015 WL 5052497 (S.D.N.Y. Aug. 25, 2015), Cummings acknowledged that “a party’s ability to observe a deponent in person does have value.”
However, “many courts have held that remote videoconference depositions offer the deposing party a sufficient opportunity to evaluate a deponent’s nonverbal responses, demeanor and overall credibility,” Cummings wrote.
And quoting Federal Rule of Civil Procedure 26(c), he wrote the health concerns raised by having the attorneys, the witness and a court reporter in a confined space provide “good cause” for entering an order mandating that the deposition take place by remote means.
Cummings ordered Walmart to pay any additional costs stemming from the use of the videoconferencing format.
In February 2019, Learning Resources Inc. filed a lawsuit in federal court in Chicago accusing Walmart and four other defendants of violating the Copyright Act of 1976.
Learning Resources, based in Vernon Hills, maintains the defendants were selling play food items that were copied from Learning Resources products.
In addition to Walmart, the defendants include three companies Walmart owns — Sam’s West Inc., Sam’s East Inc. and Jet.com — and Playgo Toys Enterprises Ltd.
Learning Resources noticed the deposition of Shelley Latham in Fayetteville, Ark., for June 30.
Learning Resources maintains Latham, a senior merchant for toys for the Walmart defendants, was the executive who bought the purportedly infringing products.
The Walmart defendants asked Learning Resources at least twice to stipulate to taking Latham’s deposition by videoconference, but the company insisted on deposing her in person.
Walmart’s lead attorney, William T. McGrath of Davis McGrath LLC, then made a formal request that Learning Resources reconsider its demand.
McGrath made that request in a May 25 letter to Learning Resources’ lead attorney, Arthur Gollwitzer III, of Michael Best & Friedrich LLP’s Austin, Texas, office.
McGrath reminded Gollwitzer that he is over the age of 65 and, therefore, has a higher risk than the general population of becoming severely ill if exposed to COVID-19.
Playgo’s lead attorney, Richard Z. Lehv of Fross Zelnick Lehrman & Zissu P.C. in New York, agreed with McGrath’s request.
The Walmart defendants filed their motion to require Latham’s deposition be taken by remote means after Learning Resources continued to insist on an in-person deposition.
In his opinion, Cummings wrote McGrath’s age is not the only reason for heightened concern over the threat posed by COVID-19.
Lawyers from two COVID-19 “hot spots,” Chicago and New York, would be traveling to Arkansas if Latham were deposed in person, Cummings wrote.
Also, he wrote, counsel would be traveling from Austin, “where COVID-19 hospitalization rates are currently on the rise.”
And the number of people hospitalized with COVID-19 in northwest Arkansas is growing, Cummings wrote.
The fact that Arkansas’ governor has lifted most restrictions he imposed in his shut-down orders, Cummings wrote, does not change the situation.
Quoting an order entered two weeks ago in David A. Joffee v. King & Spalding LLP, No. 17 Civ. 3392, in the Southern District of New York, Cummings wrote the relaxation of restrictions is “a process based in part on political or economic considerations.”
And lifting restrictions “does not mean that community spread has ceased or that individuals need not be concerned about potential exposure,” Cummings wrote, quoting Joffee.
The case is Learning Resources Inc. v. Playgo Toys Enterprises Ltd., et al., No. 19 C 660.
None of the attorneys could be reached for comment.