Hayek v. State ( 2024 )

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 247-7-20 Wncv
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Hayek Medical Devices (North vs. State of Vermont
Opinion and Order Hayek’s Motion for a Rule26(c) Protective Order
The State is seeking to depose Mr. Daniel Quigley in-person in Vermont. Hayek
has filed a Rule 26(c) motion for a protective order requiring that the deposition be
conducted remotely so that Mr. Quigley need not travel from his state of residence, South
Carolina; or that the parties be ordered to conduct an in-person deposition in South
Carolina rather than Vermont. Hayek argues that forcing Mr. Quigley to travel to
Vermont for a deposition imposes an undue burden that the Court should ameliorate
with the requested order.
As relevant to Hayek’s motion, Vt. R. Civ. P. 26(c) gives the Court authority in the
discovery context to “make any order which justice requires to protect a party or person
from . . . undue burden” for good cause shown when justice so requires. “This puts the
burden on the party seeking relief to show some plainly adequate reason therefore. The
courts have insisted on a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements, in order to establish good cause.” 8A
Richard L. Marcus, et al., Fed. Prac. & Proc. Civ. § 2035 (3d ed.).
In general, the examining party selects the location of the deposition, and a
plaintiff who avails herself of a jurisdiction should be subject to deposition in that
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location.1 Id. § 2112; Dalmady v. Price Waterhouse & Co., 62 F.R.D. 157, 158–59 (D.P.R.
1973). The rule is not inflexible, however. Alternative arrangements may be made when
the plaintiff establishes that travel to the forum state for the deposition would present a
serious hardship, such as in the case of physical infirmities. See Hyam v. Am. Export
Lines, Inc., 213 F.3d 221, 222–23 (2d Cir. 1954); see also Vt. R. Civ. P. 30(b)(7) (The Court
may order a deposition to be conducted by “remote electronic means.”).
The purported undue burden prompting Hayek’s motion is described summarily by
Mr. Quigley as follows:
3. I have received the State of Vermont’s Notice of Deposition, dated
February 23, 2024, which directs me to appear in person for a deposition in
Montpelier, Vermont on [date when Vermont deposition first was noticed].
4. I live in Myrtle Beach, South Carolina, where I expected to be on
[deposition day].
5. In addition, I have two children and am a primary caregiver during
the hours in which I am not working.
Declaration of Daniel Quigley (filed Feb. 28, 2024). In other words, on this record, travel
to Vermont is inconvenient because he was not otherwise planning to be here. That
amounts to an assertion of mere inconvenience alone.
The thrust of Hayek’s argument is that requiring Mr. Quigley to travel to Vermont
would impose at least some inconvenience, and a remote, electronic deposition could
1 Mr. Quigley’s status as employee or independent contractor is unclear in the record, but
the subject of lengthy analysis in the State’s opposition filing. Hayek originally
characterized him as an employee. When it filed the motion under consideration, it
characterized him as an independent contractor. In his declaration, Mr. Quigley
describes himself as a “senior management consultant” without further explanation. In
briefing, counsel for the State represents that counsel for Hayek more recently has
explained that Mr. Quigley believes that he is an employee, but he is paid by Hayek as
though he is a contractor. The Court declines to resolve the matter at this time. Hayek
asserts that its arguments apply even if Mr. Quigley is an employee or managing agent.
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easily be done instead. Further, according to Hayek, the State has not offered any
compelling reason why the deposition must be done in-person. Hayek’s contention is not
consistent with the burden of proof noted above.
Mr. Quigley clearly is a central figure in the underlying dispute. While the Court
agrees that the State has not compellingly shown good cause as to why the deposition
should occur in-person, the burden is on Hayek to show good cause as to why it should
occur remotely or in South Carolina. In that regard, the asserted reason, ordinary
inconvenience, asserted in a conclusory manner at best, is manifestly insufficient.
No doubt some Courts became more liberal about ordering remote depositions
during the Covid pandemic, especially when palpable medical concerns were present.
Jay E. Grenig, Electronic Discovery and Records and Information Management Guide §
12:3. “Other courts have rejected requests for remote depositions.” Id. In-person
depositions, particularly of important or controversial witnesses, still can be “crucial to
assessing a witness’s potential presentation at trial, veracity, and credibility.” Id.
Even if there is a “growing acceptance of using videoconference technology . . . as a
means of conducting discovery and trials or, possibly, a ‘new normal,’ it does not,
standing alone, give the Court a basis to compel a litigant to take a remote deposition
when that litigant has reasonably elected otherwise. There must be grounds for doing so
presented by the party making the request because an ‘in[-]person deposition is generally
superior.’” In re Deepwater Horizon Belo, No. 3:19-CV-1535, 2021 WL 6882434, at *3
(N.D. Fla. July 12, 2021).
In this case, there is insufficient cause to order a remote deposition or force the
deposing party to travel outside the forum for an in-person deposition in South Carolina.
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There is no health, expense, or other reason asserted that prevents Mr. Quigley from
traveling to Vermont. Nor is there any indication or allegation that the State’s demand
for an in-person Vermont deposition is in bad faith or being used as a tactical weapon.
The stated inconvenience to Mr. Quigley is simply not enough. The Court cannot
conclude from the present record that the burden on him from travelling to Vermont for a
brief period is “undue.” Vt. R. Civ. P. 26(c). Accord Tsien v. Bd. of Regents of Univ. Sys.
of Georgia, No. CV 121-008, 2021 WL 6617307, at *1 (S.D. Ga. Nov. 12, 2021), aff’d, No.
CV 121-008, 2021 WL 6617308 (S.D. Ga. Dec. 20, 2021) (“[m]ere inconvenience is
insufficient,” and denying protective order that would protect a party from having to
travel from China to U.S. for in-person deposition); Li v. Norwich University, No. 577-10-
18 Wncv, 2019 WL 13172495 (Vt. Super. Ct. Sept. 11, 2019) (denying as insufficient
request for order requiring remote rather than in-person Vermont deposition of plaintiff
living in China with parents in poor health). The Court does expect that the State will
work with Hayek and Mr. Quigley to arrange a reasonably convenient date and time for
the deposition.
The Court notes, finally, that the State’s parades of horrors associated with remote
depositions and “layers of administrative approvals” needed for out-of-state travel are
largely overstated. Remote depositions have been done effectively for decades, and the
advent of post-Covid technology has only improved the process. The Court has often
conducted entire trials and evidentiary hearings via remote participation. Similarly, the
Court has seen numerous cases where a government attorney has travelled out of state
for case-related activities. Nonetheless, the party noticing the deposition has some
primacy, especially where it is asking for the deposition to be held in the forum selected
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by Plaintiff; and the Court agrees that in-person depositions continue to have some
advantages over remote proceedings and that requiring the State to travel to South
Carolina would saddle it with additional expenses. In the end, Hayek has not carried its
burden of establishing a basis for the Court to overrule the State’s preference regarding
the type and location of Mr. Quigley’s deposition.
For the foregoing reasons, Hayek’s motion for a protective order is denied. The
parties shall confer and schedule Mr. Quigley’s deposition consistent with the terms of
this Order.
Electronically signed on Thursday, April 18, 2024, per V.R.E.F. 9(d).
T' othy . Tomasi
Superior Court Judge
Vermont Superior Court
Filed 04/22 2_4
Washington mt
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