A Middlesex County judge has issued an order compelling the plaintiff in a slip-and-fall lawsuit to submit to a remote deposition via teleconference, brushing aside her protestations about lacking technical knowledge.

The ruling, believed to be the first of its kind in New Jersey, is an indicator that remote depositions have rapidly won acceptance and that resisting the new technology in court will be an uphill battle.

The remote deposition ruling, from Superior Court Judge Bruce Kaplan, is also another indicator that those who resist the New Jersey judiciary's measures to keep court proceedings moving during the COVID-19 pandemic shouldn't expect sympathy from the courts.

Just yesterday, Chief Justice Stuart Rabner issued an order revising a plan to conduct grand juries remotely via Zoom. When the virtual grand jury pilot project was announced on May 14, the court said defendants would be allowed to opt out of the pilot program, but widespread objections by defendants and counsel prompted the courts to make the program mandatory.

In the case before Kaplan, lawyers for BJ's Wholesale Club moved to compel discovery of Elma Thomas of Piscataway after she canceled an April 16 virtual deposition and refused to submit to remote questioning.

Thomas' lawyer, Patricia Boguslawski of Davis, Saperstein & Solomon in Teaneck, told Kaplan in court papers that a virtual deposition would cause "unnecessary stress, annoyance, oppression and undue burden" to her client. In court papers, Boguslawski said Thomas is a 72-year-old Jamaican woman with a heavy accent, "who has absolutely no knowledge of any technology, no knowledge or access to the internet, no audio or visual knowledge, no e-mail, no printer," and is "in no way technologically inclined nor does she live with anyone who can help her."

Boguslawski said that although New Jersey's stay-at-home order remains in place, the state had entered phase one of reopening. She added that discovery in the case was running through Aug. 16 and could be extended if needed, so that "there would be no prejudice to the defendant in conducting the deposition in person when it is safe to do so."

John McConnell of Goldberg Segalla in Princeton. Courtesy photo

John McConnell, of Goldberg Segalla in Princeton, representing BJ's, sought to have a "flight pack" delivered to Thomas' home, consisting of an iPad, speaker, hot spot, charger and stand. The court reporter would remotely assist Thomas with setting up the apparatus and would control the device remotely. The cost of the service, $159, was borne by BJ's.

McConnell, in court papers, added that an April 24 Supreme Court order indicated that, "to the extent practicable," depositions "should continue to be conducted remotely using necessary and available video technology." Since defendants plan to introduce only one exhibit at the deposition, a three-page incident report, per the Supreme Court order, it is practicable for plaintiff to appear for her deposition virtually.

Kaplan's order, made public Tuesday, said that if an in-person deposition could not be held, Thomas was to participate in a deposition by Zoom or a similar system no later than July 11. In a brief statement of reasons, Kaplan said he accepts the representation of Boguslawski that her client would experience "significant hardships" from conducting a virtual deposition. But Kaplan went on to say "this case must move forward and the defendant is entitled to take the plaintiff's deposition."

McConnell declined to comment about the case. Boguslawski did not return a call.

Remote depositions by telephone are nothing new, but video depositions using Zoom or similar platforms have become more common since the outset of the COVID-19 pandemic, said Victor Zarrilli of White and Williams in Cherry Hill. In the early days after the pandemic prompted restrictions on group gatherings, some lawyers were resistant to the idea of remote depositions, but the method is winning converts, said Zarrilli.

Aside from the BJ's ruling, courts are generally not pressing lawyers to proceed with remote depositions, Zarrilli said. But "attorneys are realizing, if we did not advance the ball from a discovery perspective, courts will not be receptive to that," he said.

Remote depositions are not as effective as in-person questioning at allowing lawyers to gauge the reaction of a witness who is confronted by counsel, Zarilli said. But the new remote deposition technology will likely still be used after the pandemic is over, particularly for witnesses who might be in distant locations, he said.

David Abernethy, an attorney at Faegre Drinker Biddle & Reath in Philadelphia, likewise said remote depositions have an advantage that will outlast the current pandemic, in that it provides an alternative to witnesses who might need to travel in order to be deposed.

Abernethy said some witnesses who are giving a deposition for the first time will find remote technology makes the process more difficult. "One of the challenging issues where people have particular, individual reasons why they don't want to do it, courts are going to have to balance the needs of litigants and moving the case with the interests of the witness," he said.

Unexpected factors can emerge when a deposition witness is in his or her home, such as answers that are coached by another person, Abernethy said. He said his firm has seen a remote deposition subject, who was unable to answer a question put to him, attempt to use his laptop computer to find the answer. The process of preparing witnesses for a remote deposition is different than for the conventional type, he said.

"If you're defending the deposition, you have to get the witness comfortable with this environment. Some will be more comfortable than others," he said.