Hayek v. State

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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