Stipulated Agreement Regarding Remote Depositions
- Date
- 2021-01-11
Summary
A Stipulated Agreement Regarding Remote Depositions in Blue Flame Medical LLC v. Chain Bridge Bank, N.A., John J. Brough and David M. Evinger, with Chain Bridge Bank, N.A. as third-party plaintiff against JPMorgan Chase Bank, N.A., Civil Action No. 1:20-cv-00658 (LMB/IDD), in the U.S. District Court for the Eastern District of Virginia, filed January 6, 2021 as Document 73. 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 taken remotely. It defines participants and platforms and covers remote oaths, notice deadlines, camera and microphone conduct, exhibits and technical problems. Appendix A lists minimum technical requirements and Appendix B is an acknowledgment form; the order is signed by United States District Judge Leonie M. Brinkema.
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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,
v.
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
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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
I. "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.
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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
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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.
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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)(I) 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.
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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
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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, ifthere 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.
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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
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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.
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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
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541
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
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542
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.
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543
Dated: January 5, 2021
Isl 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@wiImerhale.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.
Isl Donald Burke
Gary A. Orseck
Matthew M. Madden
Donald Burke
ROBBINS, RUSSELL, ENGLERT,
ORSECK, UNTEREINER &
SAUBERLLP
2000 K Street, NW, 4th Floor
Washington, DC 20006
gorseck@robbinsrussell.com
mmadden@robbinsrussel I.com
dburke@robbinsrussell.com
Counsel for Defendants,
Third-Party Plaintiff
13
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544
Isl 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.mitchel l@srz.com
gregory .ketcham-colwi ll@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
So O I ~ ct_.
!sf ~1'(!:J
Leonie M. Brinkema
United States District Judge /.2 I
I/ b
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545
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.
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546
APPENDIXB
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
DA YID M. EVINGER,
Defendants.
CHAIN BRIDGE BANK, N.A.,
Third-Party Plaintiff,
V.
JPMORGAN CHASE BANK, N.A.,
Third-Party Defendant.
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY THE STIPULATED
AGREEMENT REGARDING REMOTE DEPOSITIONS
The undersigned hereby acknowledges that [print or type full name:]
_ _ _ _ _ _ _ _ _ _ _ _ has read the Stipulated Agreement Regarding Remote
Depositions in the above-captioned Action, that (s)he understands the terms thereof and that
(s)he agrees to be bound by such terms.
Signature Date
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