[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

Defendants sought an order compelling an in-person deposition or, in the alternative, dismissal of the case. Plaintiff asked for a virtual deposition. Defendants prevailed. Teman v. Zeldes Needle Cooper, LLP, 2026 WL 3135913 (S.D.N.Y. Oct. 20, 2026).

Mr. Teman sued the law firm alleging medical malpractice. He presently resides in Israel. Based on medical documents, “[h]e contends that he is unable to travel by airplane to New York, as he suffers from Eustachian tube dysfunction, and asks that he be allowed to sit for his deposition remotely or in person in Israel.”

First, the court enunciated the legal principles. Then it applied them to some unusual facts.

Though depositions via remote means have become much more common in recent years and the Federal Rules allow them pursuant to Rule 30(b)(4), district courts have continued to recognize that there is nothing extraordinary or inappropriate about seeking to take a deposition in person, particularly for a key witness….. Courts especially recognize the superiority of an in-person deposition in allowing for the assessment of a witness’s credibility…. Videoconferencing may deprive the judge of the ability to read … attitudes and body language and recognizing that an in-person proceeding allows the judge to experience those impressions gleaned through any personal confrontation in which one attempts to assess the credibility … of another….

Id. at *1 (cleaned up).

Here, the court held that an in-person deposition was warranted. Mr. Teman is a “key witness” the malpractice case that arises out of a New York State court proceeding that he had filed. His testimony was “central” and “[t]hat alone warrants conducting Plaintiff’s deposition in person.” Id. at *2 (emphasis added).

Further, the Teman court has a “long enunciated” policy “of requiring a non-resident plaintiff who chooses this district as his forum to appear for deposition in this forum absent compelling circumstances.” Id. (citation omitted).

The Teman court then turned to a number of unique factors. “There is an additional reason why Defendants’ scrutiny of Plaintiff’s credibility is of paramount importance. Plaintiff was previously convicted of bank and wire fraud.” Id. at *2.

The court also considered and rejected the proffered medical issue. Mr. Teman claimed that he “risks permanent injury to his ears, including lifelong pain and hearing loss” if he were to travel by airplane. Id. The court closely examined the three medical letters and wrote that, on the facts: “Plaintiff’s submission fails to demonstrate compelling circumstances that would rebut the presumption that Plaintiff be deposed in this District. For one, the letters are largely conclusory…. For another, there is reason to question the credibility of these reports and whether Plaintiff’s report of an ear condition is, at least in part, pretextual. Plaintiff is currently a fugitive from the United States, a status he acquired after he failed to appear for an arraignment on a violation of the terms of his supervised release that were imposed as a result of his fraud conviction.” Id. at *3. It pointed to a lengthy history of excuses.

The court concluded: “Assuming, as the Court does, that Plaintiff suffers from Eustachian tube disorder and that Plaintiff will suffer some physical discomfort if required to fly, discomfort alone is not sufficient to avoid Plaintiff’s obligation to sit in front of his inquisitors for a deposition in this District and to allow Defendants to test the veracity of the claims that he himself brought before this Court.” Id. at *4.

Finally: “Plaintiff proposes as an alternative that he sit for a deposition in Tel Aviv, paying one defense attorney’s coach airfare and two nights’ hotel and providing a conference room and court reporter…. Defense counsel has no obligation to travel to a forum entirely unrelated to the litigation. Moreover, as Defendants correctly note, the proposal fails to adequately compensate Defendants for, among other things, the legal fees associated with such a trip…. It is therefore rejected.” Id. at *4.

At bottom, the Teman court wrote that “Defendants … have a right to confront their accuser face to face. The Court has discretion to manage civil litigation to ensure that Plaintiff’s absence entitles him to no advantage.” Id. at *4 (cleaned up).

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