Akkerman v. Grange Ins. Assoc. ( 2021 )

1 Brandt L. Wolkin, Esq. (SBN 112220) Catharine M. Tolson, Esq. (SBN 271223) 2 WOLKIN · CURRAN, LLP 111 Maiden Lane, Sixth Floor 3 San Francisco, California 94108 Telephone: (415) 982-9390 4 Facsimile: (415) 982-4328 bwolkin@wolkincurran.com 5 ctolson@wolkincurran.com 6 Attorneys for Defendant GRANGE INSURANCE ASSOCIATION 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ANGELA AKKERMAN Case No.: 2:20-CV-01379-JAM-DMC 12 Plaintiff, STIPULATED DEPOSITION PROTOCOL AND ORDER 13 v. 14 GRANGE INSURANCE ASSOCIATION, and DOES 1-10 15 Defendants. 16 17 18 Plaintiff ANGELA AKKERMAN and Defendant GRANGE INSURANCE 19 ASSOCIATION submit that, given the ongoing COVID-19 pandemic, good cause exists for 20 entry of the stipulated deposition protocol outlined herein. See, e.g., Sinceno v. Riverside 21 Church in the City of N.Y., 2020 U.S. Dist. LEXIS 47859, at *1 (S.D.N.Y. Mar. 18, 22 2020) (approving all depositions being taken by “telephone, videoconference, or other remote 23 means” in view of the COVID-19 pandemic); see also Pearlstein v. Blackberry Ltd., 2020 24 U.S. Dist. LEXIS 47032, at *2-3 (S.D.N.Y. Mar. 16, 2020) (same); Thomas v. Wallace, Rush, 25 Schmidt, Inc., 2020 U.S. Dist. LEXIS 46925, at *6 (M.D. La. Mar. 18, 26 2020) (same). Cf. Automatic Equip. Mfg. Co. v. Danko Mfg., 2020 U.S. Dist. LEXIS 47350, 27 at *6 (D. Neb. Mar. 12, 2020) (permitting parties to hold Markman hearing by 28 videoconference); ResCap Liquidating Tr. v. Primary Residential Mortg., 444 F. Supp. 3d 1 967, 2020 U.S. Dist. LEXIS 44607, at *3 (D. Minn. Mar. 13, 2020) (COVID-19 “establish[ed] 2 good cause for remote testimony.”). Accordingly, pursuant Rules 1 and 29 of the Federal 3 Rules of Civil Procedure, Plaintiff ANGELA AKKERMAN and Defendant GRANGE 4 INSURANCE ASSOCIATION (collectively, the “Parties”) submit the following stipulated 5 deposition protocol for depositions in this matter: 6 I. DEFINITIONS 7 A. “Attending counsel” shall mean any legal counsel for a party that is attending 8 the deposition of a non-party. 9 B. “Court reporter” shall mean an individual retained by the deposing party to 10 transcribe the oral testimony offered at a deposition in the litigation and who is authorized to 11 administer oaths either by federal law or by the law of the place of examination. 12 C. “Deposition” shall mean any deposition upon oral examination taken pursuant 13 to Fed. R. Civ. P. 27, Fed. R. Civ. P. 30, Fed. R. Civ. P. 45, or any court order. 14 D. “Deposing counsel” shall mean the legal counsel of the party or parties noticing 15 and taking a deposition in the litigation. 16 E. “Defending counsel” shall mean the legal counsel (including counsel of record 17 and agency/in-house counsel) of the party, parties, non-party, or non-parties defending a 18 deposition in the litigation. 19 F. “Exhibit” shall mean any Document or Electronically Stored Information that 20 is marked as an exhibit during a Deposition. 21 G. “Parties” shall mean Plaintiffs, Defendants, and their current and former 22 employees, executives, officers, and directors. 23 H. “Non-parties” shall mean all natural or legal persons that are not Parties from 24 whom a Party is seeking testimony at a deposition in the litigation. 25 II. GENERAL PRINCIPLES AND DURATION OF THIS ORDER 26 A. This Order is intended to allow the Parties to continue deposition discovery in 27 light of the ongoing COVID-19 pandemic. 28 /// 1 B. The Court and counsel recognize that the COVID-19 pandemic requires the 2 Parties to be flexible in completing deposition discovery in this litigation. The Parties agree 3 to take steps that will enable deponents, deposing counsel, defending counsel, and attending 4 counsel to complete depositions in a manner that also takes into account the needs of 5 dependent care and personal health care. In light of the developing public health situation, 6 the Parties and non-parties shall meet, confer, and cooperate with one another regarding the 7 scheduling of depositions and the procedures for taking depositions. In doing so, the Parties 8 and non-parties shall make all reasonable efforts to accommodate reasonable requests for 9 continuances of depositions due to illnesses or dependent care needs of attorneys, deponents, 10 or the court reporter. 11 C. Deposing counsel and defending counsel agree to notice depositions 12 sufficiently early to allow defending counsel time to prepare the deponent to testify remotely 13 and agree to accommodate reasonable scheduling requests. Twenty-one days’ notice shall 14 typically be considered reasonable notice of the deposition. 15 D. Unless otherwise stated, this Order is not intended to alter, expand, or limit the 16 applicable Federal Rules of Civil Procedure, Federal Rules of Evidence, and/or court orders. 17 III. PROCEDURES FOR TAKING THE INITIAL DEPOSITION 18 A. Pursuant to Fed. R. Civ. P. 29(a) and Fed. R. Civ. P. 30(b)(4), depositions in 19 this litigation shall be taken by remote means that comply with local, state and federal 20 guidance, regulations, and orders concerning social distancing and public health, unless all 21 participants in the deposition, including the deponent, defending counsel, attending counsel, 22 and the court reporter, agree that remote means are not necessary. “Remote means” shall 23 include (a) telephone, (b) video-conferencing platforms that allow for the deponent, attending 24 counsel, deposing counsel, defending counsel, court reporter, and videographer to participate 25 in a deposition without attending the deposition in-person, or (c) any other means that the 26 deposing counsel, defending counsel, and attending counsel agree to. 27 /// 28 1 B. Pursuant to Fed. R. Civ. P. 30(f)(2), deposing counsel shall be responsible for 2 ensuring that any exhibits that they wish to mark and use at the deposition can be shown to 3 the witness in a manner that enables the witness to review the exhibits during the course of 4 the deposition. Acceptable means of marking and using exhibits for a deposition shall 5 include: (a) sending via Fed Ex, U.S. Postal Service, or UPS pre-marked exhibits to the 6 deponent, defending counsel, attending counsel, and the court reporter in advance of the 7 deposition; (b) emailing pre-marked exhibits to the deponent, defending counsel, attending 8 counsel, and the court reporter in advance of the deposition; (c) using a video conferencing 9 platform that enables deposing counsel to share exhibits with the deponent, court reporter, 10 defending counsel, and attending counsel; or (d) any other means that the deposing counsel, 11 defending counsel, and attending counsel agree to. If the remote means utilized does not 12 permit for the court reporter to mark exhibits remotely, deposing counsel shall be responsible 13 for pre-marking exhibits. 14 C. As used in Fed. R. Civ. P. 28(a)(1)(A), the “place of examination” is the 15 location of the deponent. A court reporter may administer an oath concerning a deposition 16 via remote means. 17 D. Deposing counsel and defending counsel shall meet, confer, and cooperate to 18 ensure that the deponent has technology sufficient to attend a deposition via remote means. If 19 necessary, this shall include arranging for the deponent to participate in a “test run” of the 20 deposition video conferencing software being utilized at the expense of the deposing party. 21 E. Deposing counsel is responsible for ensuring that the remote means utilized for 22 a deposition allow for the court reporter to accurately record the deponent’s testimony. Either 23 deposing counsel or defending counsel may elect to have a technical specialist attend a 24 deposition taken by remote means to ensure that technical issues are dealt with in a timely 25 manner. 26 F. Deposing counsel shall bear the cost of ensuring that the deponent has the 27 proper software, hardware and other relevant equipment to attend a deposition by video 28 conference. 1 G. Should technical issues prevent the court reporter from reliably hearing or 2 transcribing the testimony at any deposition taken pursuant to this order and such technical 3 issue cannot be remedied in a timely manner, deposing counsel, defending counsel, and 4 attending counsel shall meet, confer, and cooperate with one another regarding the 5 rescheduling of the deposition. 6 H. In addition to recording deposition testimony by stenographic means, the 7 deposing party may record the deposition via video. 8 I. All objections to the use and admissibility of the transcript or video of a 9 deposition taken pursuant to this order based on the fact that the deposition was taken by 10 remote means are deemed waived. 11 J. Deposing counsel and defending counsel shall be responsible for ensuring that 12 they have a means of communicating with co-counsel or the deponent, as the case may be, 13 during breaks in the deposition; the Parties agree not to oppose reasonable accommodations 14 to allow such conferences during breaks, as well as communications between co-counsel 15 during the deposition. 16 K. All persons attending depositions taken by remote means are reminded that the 17 typical rules of professionalism and etiquette during depositions still apply. All persons 18 attending depositions taken pursuant to this order who do not have an immediate need to speak 19 shall ensure that their telephone or video conference lines are muted. In addition, all persons 20 attending depositions taken pursuant to this order shall ensure that they can do so in a space 21 that is relatively free from distractions that would inhibit the course of the deposition. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS SO STIPULATED, BY AND THROUGH COUNSEL OF RECORD. 2 3 Dated: June 4, 2021 LAW OFFICES OF MARTIN ANDREAS 4 /s/ Martin Andreas 5 By: 6 Martin Andreas, Esq. 7 Counsel for Plaintiff ANGELA AKKERMAN 8 9 Dated: June 7, 2021 WOLKIN • CURRAN, LLP 10 /s/ Brandt L. Wolkin 11 By: 12 Brandt L. Wolkin, Esq. Catharine M. Tolson, Esq. 13 Attorneys for Defendant 14 GRANGE INSURANCE ASSOCIATION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 SIGNATURE ATTESTATION 2 By filing this document, I attest that I have received consent from all other signatories 3 to file this document with their electronic signature. 4 Dated: June 7, 2021 WOLKIN CURRAN, LLP 5 /s/ Brandt L. Wolkin By: 6 Brandt L. Wolkin, Esq. Catharine M. Tolson, Esq. 7 Attorneys for Defendant 8 GRANGE INSURANCE ASSOCIATION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 The Court, having read and considered the Parties’ STIPULATED DEPOSITION 3 || PROTOCOL, hereby approves the stipulated deposition protocol outlined therein. 4 IT IS SO ORDERED. 5 6 Dated: June 7, 2021 7 DENNIS M. COTA 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28