Remote But In Control: Virtual Depositions are the New Normal
With the sudden and far-reaching disruption associated with the COVID-19 crisis, parties to ongoing litigation may wonder how their cases will be affected. In response, many state and federal courts have issued emergency guidance to protect all parties’ safety during the litigation process. This guidance includes temporary orders helping litigants more readily and safely conduct depositions remotely. Although remote depositions were already allowed in both state and federal cases, Massachusetts previously required that the court reporter be physically present with the witness. While New York and federal courts did not have this requirement, they have nonetheless recently clarified that entirely remote depositions are acceptable. The new instructions from certain state and federal courts are intended to ensure that any remote process can be remote for all individuals involved.
Massachusetts State Courts
Massachusetts normally requires a court reporter to be physically present with the witness. Because close proximity between individuals currently threatens public health, however, the Massachusetts Supreme Judicial Court has announced a temporary Order that allows an authorized person to “administer oaths and take testimony without being in the presence of the deponent, so long as the officer or other person before whom the deposition is to be taken can both see and hear the deponent via audio-video communication equipment or technology for purposes of positively identifying the deponent.” Massachusetts Sup. Jud. Ct. O.E.-144 (effective March 20, 2020).
New York State Courts
The New York rules already explicitly contemplate the remote administering of oaths to witnesses: “Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition.” N.Y. C.L.S. C.P.L.R. Rule 3113(d). Even with this seemingly flexible standard in place, on March 7, 2020, Governor Cuomo issued an executive order effective through April 18, 2020 (extended as of April 7, 2020 to April 29, 2020), declaring that any “notarial act” that is required under New York State law — which presumably includes notaries administering oaths in depositions — is authorized to be performed utilizing audio-video technology as long as certain requirements are met. Executive Order Cuomo 202.7 (effective March 19, 2020); Executive Order Cuomo 202.14 (effective April 7, 2020).
United States Federal Courts
The federal rules establish a default policy that the deponent appear physically before the court officer administering the oath, although those rules allow the parties to reach an alternative agreement. In the wake of the COVID-19 crisis, federal district courts across the country have offered some helpful, albeit incomplete, guidance. The Southern District of New York has held: “For avoidance of doubt, a deposition will be deemed to have been conducted ‘before’ an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants.” Order Providing All Depositions May be Taken by Remote Means, Sinceno v. Riverside Church (SDNY March 18, 2020) (No.1:18-cv-2156 (LJL)).
Remote depositions may be a way of life for the time being and as courts adjust to the reality, best practices will develop. It is crucial to have strong technology for these depositions, and clients are advised to test the intended services before the deposition itself. Clients should also be told to be mindful of what will be visible on the screen. Any papers that are visible on the screen may become the subject of questioning, so deponents should be careful not to have any sensitive or privileged documents near them, and where the opposing attorney might see them. No one wants to see their deposition become the next viral Internet moment, or be the attorney whom a federal judge had to remind recently to get dressed before appearing on screen.
* * *
Sullivan has developed a rapid response team of attorneys to help our clients and our communities cope with the impact of the COVID-19 pandemic and understand the implications of the CARES Act and other actions taken by state governments and the federal government. Please refer to Sullivan’s resource center at www.sullivanlaw.com/COVID19 for more information and for access to Sullivan’s library of related advisories.
Please know that Sullivan is focusing substantial efforts to provide assistance to businesses and individuals affected by COVID‑19 and benefited by the CARES Act. If you have questions about how to move forward and navigate the novel legal issues raised by COVID‑19 and/or the CARES Act, please contact your primary Sullivan attorney or send a message to CARES@sullivanlaw.com.