On May 27, 2020, Judge Robert D. Kalish of the New York County Supreme Court ordered a defendant in a personal injury action to produce his client and two nonparty witnesses for a remote video deposition. There was no disagreement that the witnesses had relevant testimony to offer. Rather, defense counsel argued that these depositions should be delayed until pandemic social distancing measures were lifted. Defense counsel explained that he did not feel comfortable participating in a video deposition and that his client would be prejudiced if he were not able to sit next to the witness during questioning.
In what may be one of the first written Judicial decisions on pandemic related litigation, Judge Kalish stated: "To delay discovery until a vaccine is available for the pandemic has otherwise abated would be unacceptable." Johnson v Time Warner Cable New York City, LLC, Index No. 155531/2017