Blue Flame - FINAL Joint Motion re Dep. Protocol v2021.01.05_(184354725)

Date: 2021-01-05

Summary

Document 72-1, filed January 5, 2021 in Blue Flame Medical LLC v. Chain Bridge Bank, N.A., John J. Brough and David M. Evinger, Civil Action No. 1:20-cv-00658 (LMB/IDD), in the U.S. District Court for the Eastern District of Virginia, is Exhibit A: a Stipulated Agreement Regarding Remote Depositions. The caption also names Chain Bridge Bank, N.A. as third-party plaintiff against JPMorgan Chase Bank, N.A. Citing the COVID-19 pandemic and Rules 29(a) and 30(b)(4) of the Federal Rules of Civil Procedure, it presumes that all depositions in the action will be remote and sets rules on definitions, remote oaths, platforms, notice, camera and microphone conduct, exhibits and technical problems. It ends with an undated, unsigned order line for Magistrate Judge Ivan D. Davis, Appendix A on minimum technical requirements, and Appendix B, an acknowledgment form.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 1 of 18 PageID#
513

EXHIBIT A
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 2 of 18 PageID#
514

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)

BLUE FLAME MEDICAL LLC,

Plaintiff,
Civil Action No. 1:20-cv-00658 (LMB/IDD)
v.

CHAIN BRIDGE BANK, N.A.,
JOHN J. BROUGH, and
DAVID M. EVINGER,

Defendants.

CHAIN BRIDGE BANK, N.A.,

Third-Party Plaintiff,

JPMORGAN CHASE BANK, N.A.,

Third-Party Defendant.

STIPULATED AGREEMENT REGARDING REMOTE DEPOSITIONS

WHEREAS, the COVID-19 pandemic has made conducting traditional in-person

depositions difficult and inadvisable given health concerns and associated restrictions that have

been put in place around the country;

WHEREAS, it is uncertain when these health concerns will subside and when these

associated restrictions will be lifted;

WHEREAS, the Parties have agreed to begin conducting depositions on or after January

11, 2021;

WHEREAS, pursuant to Rule 29(a) of the Federal Rules of Civil Procedure, the Parties

may stipulate that “a deposition may be taken before any person, at any time or place, on any
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 3 of 18 PageID#
515

notice, and in the manner specified—in which event it may be used in the same way as any other

deposition”;

WHEREAS, pursuant to Rule 30(b)(4) of the Federal Rules of Civil Procedure, the

Parties “may stipulate … that a deposition be taken by telephone or other remote means”;

WHEREAS, the Parties have agreed that it will be necessary to conduct certain

depositions remotely (the “Remote Depositions”), have agreed upon the means by which they

will conduct the Remote Depositions, and wish to memorialize their agreement;

NOW, THEREFORE, it is ORDERED that the Remote Depositions shall proceed

subject to the following rules and procedures, which have been agreed upon by the Parties:

DEFINITIONS

1. “Court Reporter” shall mean the individual designated by the Court Reporting

Agency to administer and record the Remote Deposition.

2. “Court Reporting Agency” shall mean any entity agreed to and designated by the

Parties to select a Court Reporter, Videographer, and Operator for each Remote Deposition.

3. “Defending Attorney” shall mean the attorney representing the Witness at the

Remote Deposition. If the Witness is a current or former employee of one of the Parties, any

attorney appearing on behalf of that Party shall also be considered a Defending Attorney.

4. “Lead Attorney” shall mean the attorney designated pursuant to Paragraph 29,

below.

5. “Noticing Attorney” shall mean the attorney whose signature is affixed to the

deposition notice corresponding to the Remote Deposition to which these rules and procedures

apply, and/or any individual affiliated with that attorney’s law firm and authorized by that law

firm to communicate about matters relating to the Remote Deposition.

2
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 4 of 18 PageID#
516

6. “Operator” shall mean the individual designated by the Court Reporting Agency

to provide remote technological support to all Participants during the Remote Deposition.

7. “Participant” shall mean the Witness, the Questioning Attorney, the Defending

Attorney, other attorneys or client representatives appearing on behalf of one of the Parties,

paralegals or other individuals providing support to the attorneys, the Court Reporter, the

Videographer, and the Operator.

8. “Parties” shall mean Blue Flame Medical LLC, Chain Bridge Bank, N.A., John J.

Brough, David M. Evinger, and JPMorgan Chase Bank, N.A.

9. “Questioning Attorney” shall mean the attorney who questions the Witness on the

record during the Remote Deposition for the purpose of eliciting sworn testimony.

10. “Remote Deposition Video Platform” shall mean any videoconferencing service

platforms agreed to and designated by the Parties for hosting the Remote Deposition.

11. “Remote Deposition Exhibit Platform” shall mean any software application

agreed to and designated by the Parties for displaying exhibits during the Remote Deposition.

12. “Videographer” shall mean the individual designated by the Court Reporting

Agency to record the Remote Deposition by videographic means.

13. “Witness” shall mean the individual who gives sworn testimony on the record

during the Remote Deposition.

AGREEMENT TO CONDUCT REMOTE DEPOSITIONS

14. It is presumed that all depositions in this action shall be Remote Depositions.

Any Party may notice a Remote Deposition by stating its intention to take a deposition by remote

means in connection with scheduling a deposition by oral examination pursuant to Federal Rule

of Civil Procedure 30. If any Party or non-party Witness objects to the taking of the deposition

3
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 5 of 18 PageID#
517

by remote means, it must notify the Noticing Attorney, in writing, of the objection within five

days of the Noticing Attorney’s notice of intent to take a Remote Deposition. The Parties agree

to promptly confer in good faith with each other and, if applicable, the non-party Witness, to

attempt to resolve any objections pursuant to this Paragraph. If the objection is not resolved, the

person objecting may, pursuant to the Court’s Rules, schedule a telephone conference with the

Court in an attempt to resolve the dispute, and thereafter if necessary file a motion for a

protective order or a motion to quash with the Court seeking an order that a deposition may not

be taken by the means originally noticed. The deposition may not take place until the Court

resolves such motion.

15. Except as provided in Paragraph 14 above, the Parties hereby expressly waive all

objections to any Remote Deposition, or to the use of any Remote Deposition testimony in any

submissions to the Court, including at hearing or trial, based on the fact that the deposition was

taken using remote means.

COURT REPORTER, VIDEOGRAPHER, AND OPERATOR

16. Pursuant to Rule 30(b)(5)(A) of the Federal Rules of Civil Procedure, Remote

Depositions will be conducted before a Court Reporter who shall have all of the authority of an

officer appointed or authorized under Rule 28 of the Federal Rules of Civil Procedure with

respect to administering Remote Depositions.

17. The Court Reporter may administer the oath or affirmation to the Witness through

the Remote Deposition Video Platform from a different physical location than the Witness, and

such oath or affirmation shall be deemed valid and effective pursuant to applicable law to the

same extent as if the oath or affirmation had been delivered in the physical presence of the

Witness.

4
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 6 of 18 PageID#
518

18. The Videographer shall record the Remote Deposition at the direction of the

Court Reporter and shall not record the Remote Deposition during times when the Court

Reporter suspends it. To the extent feasible, only video of the Witness shall be recorded unless

the Noticing Attorney requests that video of the Questioning Attorney and/or published exhibits

also be recorded. Audio of all Participants shall be recorded. Such recording shall be deemed a

record of the Remote Deposition to the same extent as if the recording had been made in the

physical presence of the Witness. For purposes of Rule 30(c)(1) of the Federal Rules of Civil

Procedure, the Videographer shall be considered to be acting in the presence and under the

direction of the Court Reporter, so long as the Videographer is able to hear and take direction

from the Court Reporter, even though the Videographer may be in a different physical location

than the Court Reporter.

19. The transcript of each Remote Deposition shall identify all individuals attending

the Remote Deposition, including the Witness, the Questioning Attorney, the Defending

Attorney, any Participants, the Court Reporter, the Videographer, the Operators, and any other

person connecting to the Remote Deposition Video Platform for any period of time during the

Remote Deposition.

20. Any Party may ask the Court Reporting Agency to designate an Operator to assist

the Participants with any technical issues that may arise during the Remote Deposition.

REMOTE DEPOSITION PLATFORMS

21. Remote Depositions shall be conducted using the Remote Deposition Video and

Exhibit Platforms.

5
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 7 of 18 PageID#
519

22. In order to facilitate reliable use of the Remote Deposition Video and Exhibit

Platforms, each attorney shall be responsible for acquiring, maintaining, and utilizing computer,

audio, and video equipment that meets the minimum requirements set forth in Appendix A.

23. At least seven days prior to the Remote Deposition, the Defending Attorney shall

confirm whether the Witness has access to the equipment set forth in Appendix A. If the

Witness has no Defending Attorney, the Noticing Attorney shall confirm whether the Witness

has access to such equipment.

24. At least one day prior to the commencement of each Remote Deposition, the

Participants shall access the Remote Deposition Video and Exhibit Platforms and ensure that it

and all Participants’ hardware, software, and internet connections are functioning properly,

including that any required audio and video functionalities are functioning properly.

25. The Remote Deposition shall not commence until the Witness and an attorney for

each of the Parties confirm that they each have appropriate access to the Remote Deposition

Video and Exhibit Platforms.

26. All private chat features on the Remote Deposition Video and Exhibit Platforms

shall be disabled.

NOTICE

27. The Noticing Attorney shall be responsible for arranging the taking of a Remote

Deposition with the Operator, providing the Operator with a copy of this Stipulated Order at least

48 hours in advance of the deposition.

28. For each Remote Deposition, at least three calendar days prior to the Remote

Deposition, the Parties’ attorneys shall exchange the names and e-mail addresses of any

Participants other than the Witness. For those Participants who seek to appear on the record, the

6
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 8 of 18 PageID#
520

Noticing Attorney shall provide their information to the Court Reporter in advance of the

Remote Deposition in lieu of an oral roll call on the record.

29. The day before the Remote Deposition is taken, all Parties shall identify a Lead

Attorney for the particular deposition.

30. The Noticing Attorney shall provide, or shall cause the Remote Deposition Video

and Exhibit Platform(s) to provide, to the Defending Attorney (or Witness, if there is no

Defending Attorney) all details necessary to gain access to each Remote Deposition, including

but not limited to any web addresses, login credentials, and hardware and software requirements

at least 48 hours prior to the date and time at which the Remote Deposition is scheduled to

commence. Any Participant who intends be in the same room as the Witness during a Remote

Deposition shall notify the Noticing Attorney and the Defending Attorney at least two calendar

days prior to the Remote Deposition.

CONDUCT OF THE REMOTE DEPOSITIONS

31. The Witness, the Questioning Attorney, and the Defending Attorney shall keep

their cameras turned on and unobstructed while the Remote Deposition is being conducted. All

other Participants shall keep their cameras off at all times, except as otherwise directed by the

Court Reporter. The Court Reporter and Videographer may also appear on camera as

appropriate to facilitate the Remote Deposition. If the Witness is physically appearing in the

same room with any Participant, separate video cameras shall show the Witness and the

Participant. It shall be the responsibility of any Participant in the same room as the Witness to

use physical distance, directional microphones, and/or other means to ensure that the Witness’s

testimony does not suffer from echoes or feedback.

7
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 9 of 18 PageID#
521

32. The Witness shall use the audio through his or her computer or tablet (as

applicable), and shall also have a phone connection available in case the device’s audio does not

function properly.

33. Participants shall take care to minimize background noise during the conduct of

the Remote Deposition that may interrupt the Remote Deposition. Participants other than the

Witness, the Questioning Attorney, and the Defending Attorney shall place their microphones on

mute except during times that they desire to speak on the record. Participants shall make best

efforts to refrain from speaking at the same time as other Participants.

34. In order to minimize background noise, the Operator may, at his or her discretion,

or at the direction of the Court Reporter, mute individual Participants’ lines when those

Participants are not speaking, except that in no event shall the Court Reporter’s, Questioning

Attorney’s, Witness’s, or Defending Attorney’s line be muted while the Remote Deposition is

being conducted. Participants who have been muted shall retain the ability to unmute themselves

during times when they desire to speak on the record.

35. The Questioning Attorney shall use the Remote Deposition Exhibit Platform to

mark and publish all exhibits that are used during the Remote Deposition. The Questioning

Attorney shall confirm that the Witness and Defending Attorney can access each published

exhibit prior to questioning the Witness about that exhibit. Exhibits marked and shown to the

Witness using the Remote Deposition Exhibit Platform shall be attached to the deposition record

to the same extent as if the exhibits were physically marked and shown to the Witness. If, during

the course of questioning, the Witness or the Defending Attorney wishes to review a document

that is being displayed, the Questioning Attorney shall display all portions of the document

reasonably requested by the Witness or Defending Attorney before requiring an answer to the

8
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 10 of 18 PageID#
522

question. If the Questioning Attorney believes that the Witness or Defending Attorney is taking

more than a reasonable amount of time to review a document and intends to go off the record

such that the time for review is not counted against any time limit, the Questioning Attorney

shall so state, and give other counsel an opportunity to object.

36. Except as otherwise provided in this Stipulated Order, no Participant shall permit

anyone who is not a Participant to hear or view the Remote Deposition while it is being

conducted.

37. If a technical issue prevents any Participant from being able to see or hear one or

more of the other Participants clearly or to access published exhibits, the Participant

encountering such technical issue shall promptly notify the other Participants. If the Participant

encountering such technical issue is the Witness, a Lead Attorney, the Questioning Attorney,

Defending Attorney, Court Reporter, or Videographer, the technical issues shall be noted on the

record as soon as any Participant becomes aware of that issue, and the Court Reporter shall

suspend the Remote Deposition until the technical issue is resolved. If those technical issues

cannot be resolved, then the deposition shall be suspended until the concerns are resolved by the

Court or through other means. If the Participant encountering such technical issue is not the

Witness, a Lead Attorney, the Questioning Attorney, Defending Attorney, Court Reporter, or

Videographer, the Court Reporter shall pause the Remote Deposition to provide an opportunity

to promptly resolve the technical issue. If the Participant is unable to promptly resolve the

technical issue, the Remote Deposition may proceed, provided, however, that the Participant may

later make objections he or she could have made during the Remote Deposition had the technical

issue not occurred, either by agreement of the Parties, which shall not unreasonably be denied, or

by order of the Court.

9
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 11 of 18 PageID#
523

38. Any portion of the deposition that has been transcribed while a Lead Attorney,

Questioning Attorney, or Defending Attorney is absent or experiencing technical difficulties as

set forth in Paragraph 37 must be re-read upon the resolution of the technical difficulty and that

Lead Attorney, Questioning Attorney, or Defending Attorney must be given an opportunity to

object to any questions or answers that occurred in his or her absence.

39. Any time spent addressing technical issues will count as “off the record” time and

shall not count against any time limit, provided that and starting when a Lead Attorney,

Questioning Attorney, or Defending Attorney specifies it is “off the record.” If a technical issue

prevents the Lead Attorney, Questioning Attorney, or Defending Attorney from speaking to

other Participants, the Remote Deposition shall be deemed “off the record” from that time.

40. No Participant shall communicate or attempt to communicate with the Witness

while the Remote Deposition is being conducted through any means other than the Remote

Deposition Video and Exhibit Platforms, except that the Videographer or Operator may

communicate with the Witness to resolve technical issues through means other than the Remote

Deposition Video and Exhibit Platforms. Further, no Defending Attorney shall initiate a private

conference with the Witness while a question is pending, except for the purpose of determining

whether a privilege should be asserted, in which case the Defending Attorney must indicate he or

she is doing so in advance. Notwithstanding this provision, subject to all otherwise applicable

rules, the Defending Attorney may communicate privately with the Witness by any means any

time during breaks in the Remote Deposition or if the Court Reporter otherwise suspends the

Remote Deposition.

41. The Witness may not use text, e-mail, phone, or any means of communication

other than the Remote Deposition Video and Exhibit Platforms during the deposition, other than

10
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 12 of 18 PageID#
524

during breaks. The Witness may not view any web sites or view any documents, including

personal notes, other than during breaks, except for those presented to the Witness by the

Questioning Attorney during the course of that Questioning Attorney’s examination. During the

taking of the deposition, the Witness will not view any document or material unless the

document or materials are first identified on the record. All Parties stipulate that an objection for

one shall be deemed an objection for all.

42. The Parties shall meet and confer regarding the timing for all Remote Depositions

in different time zones.

43. The Parties shall meet and confer regarding whether any additional or different

procedures are necessitated by the potential use of Confidential or Highly Confidential material,

as defined in the Amended Stipulated Confidential Agreement and Protective Order (Dkt. 68), in

a Remote Deposition. Such meet and confer shall take place on a date and time agreed to by the

Parties. To the extent a Questioning Attorney anticipates seeking testimony from a Witness

regarding Confidential or Highly Confidential material prior to such meet and confer, the

Questioning Attorney shall provide notice to the Defending Attorney at least five calendar days

prior to the Remote Deposition.

44. Any Defending Attorney who does not represent one of the Parties and who

intends to represent a Witness during a Remote Deposition shall agree to be bound by this

Stipulated Order and shall memorialize that agreement by executing a copy of the

Acknowledgment and Agreement To Be Bound attached hereto as Appendix B.

45. The Parties will use reasonable efforts to cause employee Witnesses, former

employee Witnesses, and non-Party Witnesses to agree to the protocols set forth herein for

11
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 13 of 18 PageID#
525

Remote Depositions, however, insofar as any particular Witness cannot or will not agree, the

Parties will discuss in good faith alternative protocols requested or required by such Witness.

46. The Parties may modify these procedures as appropriate by mutual agreement and

reserve their rights to seek reasonable modifications of these procedures as appropriate in

individual instances.

47. The Parties agree that no Witness shall be required to have their signing of the

errata sheet notarized to be deemed effective.

48. The Parties recognize that disputes regarding this Stipulated Order and other

issues regarding Remote Depositions may arise from time to time and agree to try to resolve

those disputes in good faith before addressing any issue with the Court.

12
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 14 of 18 PageID#
526

Dated: January 5, 2021

/s/ Meredith K. Loretta______
Meredith K. Loretta (92369)
Albinas J. Prizgintas (pro hac vice)
1875 Pennsylvania Ave NW
Washington, DC 20006
Tel.: (202) 663-6981
meredith.loretta@wilmerhale.com

Alan E. Schoenfeld (pro hac vice)
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel.: (212) 230-8800
alan.schoenfeld@wilmerhale.com

Margarita M. Botero (pro hac vice)
1225 17th Street, Suite 2600
Denver, CO 80202
Tel.: (720) 274-3135
margarita.botero@wilmerhale.com

Attorneys for Third-Party Defendant
JPMorgan Chase Bank, N.A.

/s/ Donald Burke_______
Gary A. Orseck
Matthew M. Madden
Donald Burke
ROBBINS, RUSSELL, ENGLERT,
ORSECK, UNTEREINER &
SAUBER LLP
2000 K Street, NW, 4th Floor
Washington, DC 20006
gorseck@robbinsrussell.com
mmadden@robbinsrussell.com
dburke@robbinsrussell.com

Counsel for Defendants,
Third-Party Plaintiff

13
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 15 of 18 PageID#
527

/s/ Peter H. White_____
Peter H. White
Jason T. Mitchell (pro hac vice)
Gregory Ketcham-Colwill (pro hac
vice)
SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005
pete.white@srz.com
jason.mitchell@srz.com
gregory.ketcham-colwill@srz.com

William H. Gussman, Jr. (pro hac
vice)
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
bill.gussman@srz.com

Counsel for Plaintiff

14
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 16 of 18 PageID#
528

IT IS SO ORDERED.

DATE: _________________________ ____________________________________
Hon. Ivan D. Davis
United States Magistrate Judge
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 17 of 18 PageID#
529

APPENDIX A

MINIMUM TECHNICAL REQUIREMENTS FOR REMOTE DEPOSITIONS

1. Witness, Defending Attorney and Questioning Attorney

a. Computer with an internet connection (connected via ethernet if
available). In the alternative, the Witness may use a tablet with an
internet connection.

b. Internet connection with a minimum speed for both downloads and
uploads of 5 Megabits per second (“Mbps”).

c. Integrated or USB webcam.

d. USB microphone, headset, or similar device.

e. Telephone (landline if available).

2. Other Participants

a. Computer or tablet with an internet connection.

b. Internet connection with a minimum speed for both downloads and
uploads of 1.5 Mbps.

c. Telephone.
Case 1:20-cv-00658-LMB-IDD Document 72-1 Filed 01/05/21 Page 18 of 18 PageID#
530

APPENDIX B