*1 This matter comes before the undersigned pursuant to a referral from Judge Caldwell to handle the discovery disputes in this case. The parties jointly requested a telephonic conference with the Court to discuss disputes regarding expert discovery [DE 559 at Page ID # 7836], which the Court conducted on September 17, 2020. The parties raised four issues with the Court: (1) Defendants’ request that Plaintiffs’ expert Dr. Parag Goyal provide pinpoint citations to the specific studies supporting particular opinions in his report; (2) whether depositions of Defendants’ experts should proceed in-person or remotely; (3) whether Defendants’ experts will be cumulative evidence in violation of Federal Rules of Evidence 403; and (4) the protocols of the expert depositions, whether in-person or remote. On the call the parties indicated they had come to an agreement on the fourth issue. As to the third issue, Plaintiffs acknowledged they were not formally seeking relief from the Court at this time. Thus, the Court will not address those issues herein. The Court heard the parties’ arguments on the first two issues, and, being sufficiently advised, finds as set forth below.

A. Pinpoint Citations in Dr. Parag Goyal's Fed. R. Civ. P. 26 Report

The Court agrees with Defendants that the information supporting Dr. Goyal's six preclinical findings on pages 9-10 of his report is information that they are entitled to pursuant to Rule 26(a), and that it will be far more efficient for Plaintiffs to provide pinpoint citations supporting each of these six preclinical findings in advance of Dr. Goyal's deposition. The parties agreed that Dr. Goyal's deposition, currently scheduled for September 22, 2020, would be delayed, and that providing this information by September 22, 2020, would allow Defendants sufficient time to prepare for the new deposition date. Plaintiffs are correct that such information could more properly be solicited from Dr. Goyal through his examination, but providing the pin cites in advance will certainly lead to efficiencies in what the parties described as a presumably cumbersome deposition.

B. In-person vs. Remote Expert Depositions

In light of the COVID-19 pandemic, Defendants requested expert depositions proceed remotely by video, using a service such as Zoom or an equivalent. Defendants note their experts live in San Francisco, San Diego, Chicago, Nashville, and Columbus, while both Plaintiffs’ and Defendants’ counsel are located across the United States. Defendants argue that in-person depositions would require air travel and 14-day quarantine in some states, a significant burden on all involved and one that could not be borne by the October 2, 2020, expert discovery deadline. Defendants note that one of their experts is a physician who works with immunocompromised patients and lives with an immunocompromised family member. Accordingly, he has asked that he not be required to appear at an in-person deposition. Defendants plan to take the depositions of Plaintiffs’ experts remotely.

*2 “Courts have long held that leave to take remote depositions pursuant to Rule 30(b)(4) should be granted liberally.” In re Broiler Chicken Antitrust Litigation, 2020 WL 3469166, at *7 (N.D. Ill., 2020) (citing numerous cases in accord). Since the COVID-19 pandemic took hold in March 2020, courts across the country have addressed repeated requests for remote depositions for the same reasons as Defendants cite here. In a case that has been cited with unanimous support, the Northern District of Illinois set forth a two-part test to determine whether a court should grant a party's request to take a deposition remotely. Id. The moving party must have a legitimate reason for the request for a remote deposition pursuant to Fed. R. Civ. P. 30(b)(4). Id. at *7 (“[A]lthough some courts speak colloquially about whether there is “good cause” to take remote depositions allowed by Rule 30(b)(4), the Rule does not literally require the existence of good cause. Rather, it appears to leave it to the court's broad discretion over discovery to determine whether there is a legitimate reason to take a deposition by telephone or other remote means under all the facts and circumstances of a given case.”). If the moving party meets that burden, the second prong requires the opposing party to demonstrate how it would be prejudiced by remote deposition as opposed to in-person depositions. Id.

Considering the current pandemic, travel complications, and potential delay to the already delayed schedule in this case, Defendants have easily met their burden under the first prong. As is often repeated in numerous decisions, “[t]he pandemic has temporarily redefined how law is practiced.” H&T Fair Hills, Ltd. v. Alliance Pipeline L.P., 2020 WL 5512517, at *3 (D. Minn. Sept. 14, 2020). “Attorneys and litigants all over the country are adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely.” Grano v. Sodexo Mgmt., 2020 WL 1975057, at *3 (S.D. Cal. Apr. 24, 2020). “In the deposition setting, counsel taking the deposition are orally asking questions. The witness is testifying orally. Attorneys defending the deposition are orally making objections.” H&T Fair Hills, supra at *3. “[E]ven with the protection of masks and social distancing, an in-person deposition generally requires the participants to sit in a shared, enclosed space, for prolonged periods of time.” Grupo Petrotemex, S.A. de C.V. v. Polymetrix AG, 2020 WL 4218804, at *2 (D. Minn., July 23, 2020).

Plaintiffs argued that they are willing to limit the in-person depositions to the two experts in California and one expert in Chicago, Illinois, and that the social distancing/quarantine mandates in both locations have been or will soon be significantly relaxed. Plaintiffs argued this is evidence that in-person depositions may be conducted safely where the parties take appropriate precautions. Science disagrees. See https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out.html (last visited Sept. 17, 2020) (“In general, the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread. So, think about: [...] [e]ngaging with new people (e.g., those who don't live with you) also raises your risk. [...] Indoor spaces are more risky than outdoor spaces where it might be harder to keep people apart and there's less ventilation.”) (emphasis in original). While some precautions, such as masks and sitting far apart in a large space may reduce the risks associated with in-person depositions, there are no precautions that can eliminate the risks.

Moreover, the proposed depositions will require travel between at least three states for most of the attorneys involved in this litigation, posing risks to themselves and the communities between which they travel. And each of those jurisdictions have certain quarantine requirements that will almost certainly mean key attorneys for both Plaintiffs and Defendants would be sidelined for two weeks. With the impending expert discovery deadline of October 2, 2020, fast approaching, the idea of completing these depositions in-person is an insurmountable feat. Accordingly, the Court finds Plaintiffs’ arguments unavailing. Defendants made a sufficient showing that there is a legitimate reason for their request to take the depositions remotely pursuant to Rule 30(b)(4).

*3 “Once the proponent of taking a deposition by remote means makes a sufficient threshold showing, the burden then shifts to the opposing party to show how it would be prejudiced if the deposition were taken in that way.” Broiler Chicken, supra at *7. Plaintiffs have failed to make such a showing here. Plaintiffs argue a remote deposition will be unwieldly in this case; that there are thousands of documents the experts may reference; that cross-examination will be less effective where Plaintiffs cannot fully view and appreciate the deponent's body language; that the technology is not reliable; and that it opens up the deposition to misconduct by the deponent or opposing counsel.

Yet, “[i]f the lack of being physically present with the witness were enough prejudice to defeat the holding of a remote deposition, then Rule 30(b)(4) would be rendered meaningless.” Rouviere v. Depuy Orthopaedics, Inc., 2020 WL 3967665 at *4 (S.D.N.Y. July 11, 2020). Rule 30(b)(4) was created for legitimate situations where being in-person is not viable—and a global pandemic is just such a situation. A “document laden” or “document intensive” deposition is “not an obstacle to a successful remote videoconference deposition[ ]” because “exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently.” Id. at *3 (citations and quotation marks omitted). See also Grupo Petrotemex, supra (“The current technology, however, can be adapted to allow for documents to be displayed along with a view of the witness, and courts have ‘found that exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently’ ”) (internal citations omitted).

As for Plaintiffs’ other concerns, the Court notes that it presumes members of the bar can be trusted to comport themselves within the bounds of the ethical rules; that technical issues can and do arise even during in-person depositions, and that while there is less of an opportunity to observe the tone or body language of the deponent, the opportunity is not lost altogether. The Court finds there is no undue prejudice in requiring Plaintiffs to take the depositions of Defendants’ experts remotely.

Based on the parties’ request for an extremely expedited teleconference, the Court did not request the parties fully and formally brief the issues before it. The Court will permit either party to file a formal motion (with briefing) related to the findings in this Order if either party so desires. Accordingly, for the reasons stated herein and the Court being sufficiently advised, IT IS ORDERED that:

Entered this 18th day of September, 2020.