Remote depositions are here to stay

The COVID-19 pandemic that swept across the world in March 2020 has forever changed the landscape of litigation in the United States – including the taking and defending of depositions.

The legal industry, which has generally been slow to change, was forced to pivot towards embracing technological innovations that permitted remote litigation activities. This led to the widespread adoption of virtual court appearances and remote depositions, as opposed to a formal courtroom or law office.

Before the pandemic, under former Code of Civil Procedure Section 2025.310, availability of remote depositions were extremely limited and were generally used after a court issued an order permitting the remote deposition if the deponent was in a different location from the deposition officer. On April 6, 2020, the Judicial Council of California issued emergency rules in response to the COVID-19 pandemic, including Emergency Rule 11, which provided the following: “Notwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and [California Rules of Court] rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition.”

Emergency Rule 11 was repealed Nov. 13, 2020, but not before the California legislature amended Code of Civil Procedure Section 2025.310(a) that made permanent on Sept. 18, 2020, the utilization of remote depositions under the following circumstances: “At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.” Subsection (b) of Code of Civil Procedure Section 2025.310 permits “any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.” California Rules of Court, rule 3.1010(a) and (b) sets forth the notice period, arrangements, and costs necessary to schedule and participate in a remote deposition.

The modification of the statute governing depositions flipped, from the default of in-person to remote depositions. For over two years, the standard form of California depositions occurred by remote means. In practice, remote depositions expanded the need for third party court reporters to perform more duties than ever before. Not only did court reporters have to type a transcript of the deposition, they also needed a document management system in place for the questioning attorney to easily access, mark, and pull up exhibits for use at the deposition. Remote depositions also provided an easy way for a deposition to be videotaped, and eliminated the need for a separate videographer – which was the usual way in which depositions were videotaped pre-pandemic. The reduction of travel expenses and attorney time for depositions may be offset, in part, by the increased cost of remote depositions by third party vendors. That said, the benefits of efficiency in remote depositions going forward should ultimately benefit litigators and their clients. Remote or virtual depositions allow deponents ease of accessibility through technological means, via phone or computers. The law firm may lend these tools and provide instructions and guidelines. There is the added benefit of being able to conduct depositions from the comfort of home or another remote space, as opposed to an unfamiliar or sterile office environment.

Despite the obvious benefits of remote depositions, there are certain drawbacks. They include the inability for the questioning lawyer to observe the witness beyond what is available on the screen. Glitches in internet service can interrupt the flow of a deposition, yielding a scattered record. There also exists the obvious challenge of observing and policing the interaction between the witness and counsel – who can more discreetly communicate through text messages off-screen. (This unfortunate reality of unethical lawyer behavior was made famous by a Nov. 18, 2021 Florida case where a lawyer was suspended for 91 days after texting advice to a witness during a phone deposition). Critics of remote depositions often remark that the process does not adequately mirror a trial court setting. Remote depositions can fail to adequately formalize the deposition process and too easily allow for witnesses and counsel to be detached from the seriousness of the proceedings.

Even so and as the world slowly arises out of Covid, it remains an open question when and how often remote depositions will be used. Particularly now since its use and practice has become familiar. As a result, the professional standard of care for lawyers going forward requires them to take and defend remote depositions in a competent manner. The legal industry has been forced to embrace technological advances to adequately respond to the global pandemic, resulting in improved efficiency and a transformational approach to depositions.

Jason E. Fellner is a partner and Laura T. Dang is an associate at Millstein Fellner, LLP, a full service law firm in California headquartered in San Francisco.