On September 19, 2024, Justice Reed of the New York County Commercial Division issued a decision in Sumec Textile & Light Indus. Co., Ltd. v. Zee Co. Apparel Corp., 2024 NY Slip Op. 51306(U), requiring a foreign plaintiff to come to New York to be deposed, explaining:
The parties dispute whether the deposition of plaintiff’s representative should take place in person in New York County, New York or virtually.
Counsel for plaintiff argues that good cause exists pursuant to Rule 37 of the Rules of the Commercial Division of the Supreme Court to permit the deposition to be conducted virtually. Plaintiff’s counsel represents that its representative resides in China and that the time and expenses required for her to travel to New York for a deposition would be unduly burdensome. Further, plaintiff’s counsel represents that the proposed witness is the principal caretaker for a young child and cares for her elderly parents, who all reside in China.
Counsel for defendant argues that mere inconvenience is not good cause for plaintiff to avoid the obligation to produce a witness for deposition in New York. Defendant’s counsel also argues that defendant has the right to conduct the deposition in person, which would provide an opportunity to better assess the credibility of the witness and to present the witness with physical evidence relevant to the case, including a coat and hundreds of documents. In addition, defendant’s counsel argues that a virtual deposition may be prone to technical issues in viewing and sharing documents during the questioning of the witness.
The long-standing preferred practice, except in cases where hardship is shown to exist, is to proceed with examinations here in New York.
Under Rule 37 of the Rules of the Commercial Division, the court may, upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means, considering such factors as the distance between the parties and the witness, including time and costs of travel by counsel and litigants and the witness to the proposed location for the deposition and whether the witness is a party to the litigation. However, the conduct of discovery remains squarely within the court’s discretion.
The reasons cited by plaintiff are insufficient to overcome the presumption that a party litigating in New York should accept the costs and expenses of choosing to do so. Moreover, as plaintiff has chosen New York as the venue to present its claim, it cannot reasonably argue to be aggrieved by the accompanying obligations.
(Internal quotations and citations omitted).