By Braden Campbell

Law360 (June 18, 2020, 4:33 PM EDT ) If King & Spalding partner and former Deputy Attorney General Rod Rosenstein can "give hours of testimony" to Congress, two of the firm's ex-partners can sit for physical depositions in a wrongful termination suit, a fired King & Spalding associate told a New York federal court Thursday.

Former King & Spalding LLP associate David Joffe urged Southern District of New York Judge Valerie Caproni to reconsider a June 4 order that quashed his bid to physically depose former colleagues Meredith Moss and David Fine due to coronavirus concerns.

Current King & Spalding partner Rosenstein's testimony before the Senate Judiciary Committee, among other things, shows in-person depositions are not the danger the court makes them out to be, Joffe argued.

"Abounding day-to-day evidence shows that health risks from appearing in-person are not insurmountable but can be mitigated, particularly for young, healthy lawyers who have the means and willingness to take commonsense precautions," he said.

Joffe is seeking to depose Moss and Fine, whose current firm affiliations aren't clear from the filing, in his Employee Retirement Income Security Act suit alleging King & Spalding cost him retirement benefits by firing him after he raised ethical concerns about a senior attorney. Joffe asked to question them in-person following their "surprise designations" as witnesses in a March filing.

Judge Caproni ordered remote depositions earlier this month, saying in-person interviews are too dangerous during the pandemic. Because Moss and Fine would have to "travel across state lines … congregate for several hours in a confined space, and then disperse back to their homes," physical depositions are too risky, she said.

This order clashes with legal rules and "ongoing practice in this district and elsewhere," Joffe argued Thursday.

Judge Caproni issued her order even though Moss and Fine had not formally opposed Joffe's request to depose them in person. This flouted federal rules requiring judges to probe witnesses' "concrete, individualized explanation" as to why they can't be deposed in person, Joffe said. It's not clear they can make that showing, he added.

"Neither Ms. Moss nor Mr. Fine has provided a single specific fact about the 'extent of the [witness's] burden,' such as their general health profile, immunological circumstances, or any other facts from which a physician could conclude" that in-person depositions would be too dangerous, he said.

And Judge Caproni's order belies the broader handling of in-person business during the pandemic, Joffe said. He noted Southern District Judge Colleen McMahon is set to conduct a live trial in a few weeks, and that Rosenstein sat for extended congressional testimony earlier this month.

"The special solicitude given by the court in finding that two young ex-K&S partners face a per se undue burden by testifying in-person is inconsistent with similar proceedings taking place in this district and elsewhere," Joffe said.

Joffe also argued that courts in Utah and Pennsylvania, where he seeks to depose Moss and Fine, respectively, should have resolved this dispute, and that Judge Caproni botched the risk analysis.

Joffe declined to comment Thursday. Attorneys for King & Spalding did not immediately respond to a request for comment.

Joffe is representing himself.

King & Spalding is represented by Joseph Baumgarten and Pinchos Goldberg of Proskauer Rose LLP.

The case is Joffe v. King & Spalding LLP, case number 1:17-cv-03392, in the U.S. District Court for the Southern District of New York.

--Editing by Bruce Goldman.

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