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Masimo v. Apple: Remote Depositions Ordered if Deponent Has Not Attended Any In Person Work Meetings and Will Be Required to Continue to Work Remotely

In this patent dispute, Apple sought an order requiring that 11 depositions of Apple employees, noticed by Plaintiffs Masimo Corporation and Cercacor Laboratories, Inc. (“Plaintiffs”) for May and June 2021 to proceed in-person, in San Francisco, California, instead take place remotely by videoconference under Rule 30(b)(4) of the Federal Rules of Civil Procedure due to the continuing COVID-19 pandemic.

Although Apple did not provide declarations from the deponents or evidence upon which to conclude that the deponents themselves had concerns about appearing in-person for depositions or were only required to work remotely for the foreseeable future, due to the seriousness of the issues raised, the district court did not deny the request outright but instead provided Apple with an opportunity to make an appropriate showing.  As part of this showing, the district court required Apple’s counsel to submit a declaration that “identifies by name each of the 11 Apple employee-deponents who are the subject of the Application, and, for each deponent, attests that counsel has either spoken with or received an electronic communication directly from each such deponent, and answers, for each such deponent based on such communication: (a) whether the deponent states the deponent uncomfortable proceeding with an in-person deposition due to COVID-19; (b) whether the deponent has, for the preceding 30 days, worked for Apple remotely-only; (c) whether the deponent has attended any in-person work-related meeting during the preceding 30 days; and (d) whether the deponent has been advised that Apple requires the deponent to work remotely for the next 60 days. Confirmation of items (b), (c), and (d) are included based on the arguments and assertions made by Apple in the Application.”

The district court further determined that “[f]or each Apple employee-deponent referenced in a timely declaration by counsel who has advised counsel that the deponent is not comfortable proceeding with an in-person deposition due to COVID-19, has only worked remotely for Apple in the preceding 30 days, has not attended any in-person work meetings in the preceding 30 days, and has been advised by Apple that the deponent-employee will be required by Apple to continue to work remotely for the next 60 days, good cause will have been shown, the Application is GRANTED, and each such deponent may appear remotely on the date Apple has agreed to make such deponent available in May and June 2021, or on another date mutually agreeable by the parties. For any deponent as to whom such a certification is not timely made, good cause has not been shown, and the Application is DENIED.”

Masimo Corp. v. Apple Inc., Case No. 8:20-cv-00048-JVS (S.D. Cal. May 11, 2021)


The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP.  For more information about this case, contact Stan Gibson at 310.201.3548 or