As the legal profession continues to adjust to the COVID-19 pandemic, even something as normal and regular as a deposition has often become an adventure. Even after accounting for the immediately obvious questions (is in-person too dangerous or not allowed? If conducting a remote deposition, what vendor should I use?) and all-to-common glitches like connectivity issues, new problems continue to pop up, even when seemingly doing the right thing. Take, for example, a deposition in Webber v. Dash, a libel and copyright case in S.D.N.Y. Plaintiffs attempted to depose the defendant, Damon Dash, best known as a cofounder of the hip hop label Roc-A-Fella Records with Jay-Z and Kareem “Biggs” Burke. According to the Plaintiffs, there was a big problem: Dash’s testimony could not be clearly heard. In seeking termination sanctions, the plaintiffs accused Dash of purposefully speaking in a low voice behind the two masks he was wearing. (Dash may have been ahead of the curve, as shortly after the order came down, the CDC started to recommend “double masking”—wearing a cloth mask over a disposable mask—though the court’s order is unclear as to the nature of his two masks.)
The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life. However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it can be invoked to obtain an extension or continuance with respect to discovery obligations.