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COVID-19 and the date and location of a party deposition

In re Berrenberg, No. 08-20-00104-CV, 2020 WL 4218795 (Tex. App.-El Paso 7/23/20, orig. proceeding) shows the effect of the COVID-19 epidemic on a discovery-dispute familiar to any litigator – the date and location of a party’s deposition. The Berrenberg plaintiff brought a medical-negligence claim based upon a plastic-surgery procedure that took place in El Paso. After the surgery but before the lawsuit was filed, the defendant-surgeon retired and moved to Fort Worth. As part of discovery, plaintiff sought to take the defendant-doctor’s deposition on March 31, 2020 in El Paso. Although the doctor agreed to the date, his counsel insisted that the deposition occur in Fort Worth and filed a motion to quash. Based solely on the arguments of counsel, the trial court sustained the doctor’s motion for three reasons: (1) Texas Rule of Civil Procedure 199.2 provides that the party-witness’s county of residence is a proper deposition-location; (2) the defendant-doctor was allegedly caring for an elderly relative; and (3) the COVID-19 pandemic presented a hazard preventing travel.

On mandamus, the El Paso Court of Appeals granted in part and denied in part. In particular, the court of appeals held: (A) as a party to the case pending in El Paso, the doctor could be deposed in that city pursuant to TRCP 199.2; (B) the trial court correctly quashed the deposition set for March 31, 2020 due to COVID-19 concerns; but (C) given the absence of any affidavits or other evidence, the trial court abused its discretion in holding that the deposition must take place in Fort Worth. Essentially, the El Paso Court of Appeals set the parties back to their initial positions to negotiate the time and place for the deposition.

With that in mind, it seems likely that the Berrenberg trial court and other similarly-situated courts will take into account the Eighteenth Emergency Order Regarding the COVID-19 Disaster (the “18th Emergency Order”), Misc. Dkt. No. 20-9080. To protect parties, court officials, and other, the 18th Emergency Order allows trial courts to “modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order for a stated period of time no later than September 30, 2020.” Interestingly, the 18th Emergency Order specifically allows family courts to “allow or require anyone involved in any hearing, deposition, or other proceeding of any kind … to participate remotely such as by teleconferencing, videoconferencing, or other means.”