Depositions usually are scheduled and taken without undue turmoil. Recent changes to the rules concerning the behavior of counsel at depositions have further regulated the proceedings. Counsel may no longer make talking objections, may not direct their client not to answer, except in rare circumstances, and must be polite. We’ve not heard of any more "barking dog" depositions in which one attorney baits the other.
Where the deposition takes place is rarely a question of anything other than "your office or mine?" but in this case defendants demanded an in-person deposition of the plaintiff who could not travel to the US anymore. Here, in Koch v. Sheresky, Aronson & Mayefsky LLP, 112337/07
Decided: May 13, 2010 we see how Justice Goodman solved the problem:
"Presumably based upon the document from the American Embassy, plaintiff contends that under the Immigration and Naturalization Act (8 USC §1182 [a] [9]), a new application for admission to the country can only be entertained toward the end of 2010. Defendants offer no proof to contest this statement.
Thus, all of the cases relied on by defendants in support of their motion to require plaintiff to submit to an examination in New York, are inapposite and in those cases travel to New York was within the power and control of the party whose deposition was sought.
Courts have often directed the deposition of a party by video-conference, where the party had difficulty obtaining, or had been denied, a visa, or because of stringent U.S. travel restrictions with respect to the country of residence of the party to be deposed. See Doherty v. City of New York, 24 AD3d 275 (1st Dept 2005) (affirming an order to take deposition in Ireland, where plaintiff was denied necessary visa, and directing plaintiff to pay costs of defendant’s travel-related expenses); Semenov v. Semenov, 24 Misc 3d 1241(A), 2009 NY Slip Op 51836(U) (Sup Ct, Richmond County 2009)(granting application for live video-conference deposition of plaintiff and permission to use videotape at trial, where there were restrictive travel policies and stringent visa requirements for Latvian residents); Matter of Singh, 22 Misc 3d 288 (Sur Ct, Bronx County 2008)(permitting deposition of petitioner and other witnesses residing in India by video-conference, where affidavit submitted by attorney indicating that visa applications were denied by U.S. Embassy); Kirama v. New York Hospital, 13 Misc 3d 1246(A), 831 NYS2d 360, 2006 NY Slip Op 52356(U) (Sup Ct, NY County 2006) (ordering deposition by video conference in Morocco, where plaintiff could not obtain a visa and, thus, could not legally travel to the United States, despite her efforts and those of her counsel, her relatives and even the court). As in Kirama v. New York Hospital, plaintiff did not absent herself from New York in order to evade being deposed in New York, rather, she was required to leave the state because of the change in her immigration status (here, her conditional permanent resident status had expired).
Even assuming that, at some time in the future, plaintiff can obtain a visa to enter the United States her appearance will be completely dependent on the administrative process of the American Embassy and/or the Attorney General, who may grant exceptions to the normal requirements of the immigration law. 8 USC §1182 (d). Moreover, should the United States government again deny plaintiff’s request for a visa, thereby precluding her appearance in New York for deposition and/or trial, her ability to proceed with this litigation could be severely hampered, despite the fact that her complaint survived defendants’ motion to dismiss. Thus, it is preferable, for all parties, and for the court as well, that a reasonable process be provided to enable the oral examination of plaintiff by defendants to proceed, without the uncertainty involved in the visa application process.
In recent correspondence, counsel for plaintiff has offered to assume the costs of setting up a video-conference deposition, and to accommodate defendants’ schedules, in light of the time difference between New York and Prague. Counsel for plaintiff has also offered to pay travel costs of counsel for defendants, should they agree to depose plaintiff in person in the Czech Republic. The court will offer defendants a number of alternatives, which would avoid any undue prejudice. See Wygocki v. Milford Plaza Hotel, 38 AD3d 237 (1st Dept 2007) (because a deposition in New York would impose an undue hardship on an elderly resident of Ireland, the alternatives of a deposition on written questions, a deposition in Ireland, a deposition by telephone or video deposition, or deposition in New York 30 days before trial avoided any undue prejudice to defendant)."