By Morgan Manley, Isabella Loarte-Ciudad, and James Doar
New York law presumes that depositions will be conducted in person. As such, the burden has historically fallen on the party requesting a remote deposition to establish that an in-person deposition would cause undue hardship. Previously, most New York courts favored in-person depositions and strictly construed what constituted “undue hardship.” During the Covid pandemic, courts shifted the presumption and required the opposing party to justify the need for in-person depositions. Recently, trial courts are split on whether to return to the pre-pandemic undue burden standard or whether to require a lesser showing and, in some instances, shift the burden to the party requesting the in-person deposition to show why a virtual deposition is deficient.
CPLR 3110(1) entitles parties to depositions within the county where the action is pending or where the deposed persons reside. Parties, however, are permitted to stipulate remote depositions by electronic means pursuant to CPLR 3113(d). When parties do not agree on the format of the deposition and refuse to stipulate remote depositions, the party requesting the remote deposition must establish that an in-person deposition within the county the action is pending would cause undue hardship.
Prior to the Covid pandemic, New York courts strictly scrutinized whether a party had shown undue hardship sufficient to warrant a remote deposition. Courts generally disfavored remote depositions, often rejecting arguments of undue hardship and directing parties to appear for in-person depositions. This trend shifted drastically during the COVID-19 pandemic, when several New York courts required parties to appear for remote depositions for safety reasons. In Fineman v. Qureshi, for example, the Court explained that “since COVID-19 ha[d] disrupted the process of conducting in-person depositions safely within the state, numerous trial courts have found that virtual depositions [were] an acceptable alternative.” The Court reasoned that pausing discovery proceedings indefinitely, until Covid restrictions are lifted, would greatly prejudice the plaintiff. This push by the courts to proceed with remote depositions rather than pausing proceedings until mandates were lifted, led to a surge in remote depositions, the proliferation of legal tech literacy, and the advancement of new legal technology.
In the years since the beginning of the pandemic and because of the increase in technological capabilities and convenience, courts remain split on whether and how to interpret CPLR 3110.
Some courts have returned to the pre-COVID less lenient undue hardship standard for remote depositions. In Lanaras v. Premium Ocean, for example, the Supreme Court required a citizen of Greece with disabilities and multiple sclerosis to appear for an in-person deposition in New York, the county where the action was pending. The court found that “plaintiff’s showing of undue hardship is insufficient to warrant an exception to the general rule, that a party’s deposition is to be held in the forum county,” because plaintiff had not included a sworn statement from a treating physician to attest to the health risks that the witness would suffer as a result of traveling to New York. The court dismissed plaintiff’s contentions relating to COVID risks, reasoning that in 2025 most Covid precautions have been rescinded. Similarly, in 2024 in Kleinberg, Kaplan, Wolff & Cohen, P.C. v. Ria R Squared, Inc., the Court required defendant’s president and CEO to travel from Los Angeles to New York for an in-person deposition, finding that defendant had failed to demonstrate undue hardship and had misplaced reliance on COVID-era Administrative Orders that had been rescinded.
Conversely, some courts continue to flip the burden and are requiring the party objecting to the remote deposition to show why an in-person deposition is necessary. For example, in one Westchester County case, the Court declined to require the CEO of a California entity defendant to appear for an in-person deposition in New York where the defendant simply stated that the “unnecessary cross-country travel and related expenses,” would be an undue hardship. Similarly, in an employment discrimination case in New York County, the 72-year-old plaintiff objected to appearing for a deposition in New York because she was a nonresident “senior citizen.” The Court, rejecting defendant’s CPLR 3110 arguments and its offer to conduct the deposition in plaintiff’s home-state, held that “absent some specific, articulated reason to believe that virtual deposition would be inadequate . . . to assess plaintiff’s credibility and demeanor, the court declines to require plaintiff to appear for an in-person deposition.”
Without guidance from the Appellate Division, New York litigants are left guessing as to which standard will apply and under what circumstances. A hard look at the “undue burden” standard is overdue and a reasonably fashioned approach that balances both modern technological capabilities with strategical benefits and practicalities of conducting an in-person deposition is necessary. In the interim, practitioners requesting a remote deposition should be sure to include supporting documentation that shows evidence of undue hardship—not merely relying on conclusory statements of undue hardship, and plaintiffs who chose to litigate in New York should be especially careful when claiming that depositions held in the county where their action is pending would present an undue hardship.