Remote But In Control: Virtual Depositions are the New Normal

Client Alert
June 24, 2020

ADVISORY UPDATE: On May 26, 2020, the Massachusetts Supreme Judicial Court issued additional guidance concerning remote depositions, reiterating its support for remote depositions whenever possible in light of continuing challenges related to the COVID-19 pandemic. Not only does the new instruction reaffirm that an authorized person may administer oaths remotely, it adds that a party’s personal preference for in-person deposition is not an adequate basis to quash notice of a remote deposition. However, the default policy regarding depositions making use of an audio-visual recording pursuant to Mass. R. Civ. P. 30A still requires that the "operator/videographer … be physically present with the witness unless otherwise agreed to by the parties." Massachusetts Sup. Jud. Ct. O.E.-144 (effective May 26, 2020).

In New York, Governor Cuomo issued three additional executive orders extending the effectiveness of the March 7, 2020 order permitting "notarial acts" to be administered remotely, provided certain conditions are met, through July 13, 2020.  Executive Order Cuomo 202.7 (effective March 19, 2020); Executive Order Cuomo 202.14 (effective April 7, 2020); Executive Order Cuomo 202.18 (effective April 16, 2020); Executive Order Cuomo 202.31 (effective May 14, 2020); Executive Order Cuomo 202.41 (effective June 13, 2020).

More federal courts across the country have continued to authorize and encourage remote depositions in light of the ongoing pandemic. See, e.g., Damron v. Liberty Mut. Ins. Co., No. 19-11497, 2020 U.S. Dist. LEXIS 101390, at *2 (E.D. Mich. June 10, 2020) ("The magistrate judge explained that "Federal Rule of Civil Procedure 30(b)(4) permits depositions by remote means. And during the current pandemic, ‘[v]ideo or teleconference depositions and preparation are the 'new normal’ and most likely will be for some time. Litigation cannot just come to an indefinite halt.’") (quoting Wilkens v. ValueHealth, LLC, No. 19-1193-EFM-KGG, 2020 U.S. Dist. LEXIS 84913, 2020 WL 2496001, at *2 (D. Kan. May 14, 2020)); Ogilvie v. Thrifty Payless, Case No. C18-0718JLR, 2020 U.S. Dist. LEXIS 83620, at *6 (W.D. Wash. May 12, 2020) ("Although the court understands that the parties may have a preference for taking depositions or meeting in person, given the present circumstances, the court urges the parties to consider available alternatives."); United States ex rel. Chen v. K.O.O. Constr., Inc., Case No.: 19cv1535-JAH-LL, 2020 U.S. Dist. LEXIS 81866, at *3-4 (S.D. Cal. May 8, 2020) ("It is not feasible for the Court to extend deposition deadlines until a time when they can be safely conducted in person because no one knows when that will occur and there are alternatives."); SAPS, LLC v. EZcare Clinic, Inc., 2020 U.S. Dist. LEXIS 69575, at *6-7 (E.D. La. April 21, 2020) ("This court will not require parties to appear in person with one another in the midst of the present pandemic. Nor is it feasible to delay the depositions until some unknown time in the future."); United Coals, Inc. v. Attijariwafa Bank, No. 1:19-CV-95, 2020 U.S. Dist. LEXIS 65061, 2020 WL 1866426, at *7 n. 8 (N.D.W. Va. Apr. 14, 2020) ("As counsel and the Court endeavor to litigate and adjudicate during the COVID-19 outbreak, the world in which lawyers toil for depositions and the like has shrunk even more than before the pandemic with the prevalence of Zoom, FaceTime, Skype and other virtual discovery platforms.").

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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)).

Summary

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.

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