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Remote Depositions Are the New Normal


It is no secret that as the COVID-19 pandemic swept through the nation like wildfire and forced us to adapt new ways to go about our daily lives. Our work in the legal field was no exception. The pandemic highlighted the concept of conducting remote depositions, a practice that law firms and courthouses were compelled to adopt during lockdown so litigation matters did not remain stagnant. Although restrictions are lifting, and we do see fluctuation in in-person proceedings correlating with easing restrictions, there are many benefits that make remote depositions the new normal.

    • Save on costs. The cost of travel can weigh heavily on attorneys and their clients. When factoring in airfare, lodging, car rentals, fuel, and meals, you can easily expect to pay thousands of dollars. Car rentals alone are hundreds of dollars a day now due to the shortage of vehicles, not to mention the apprehension some still have about flying during the pandemic.
    • Convenient. Conducting a deposition remotely gives all the parties involved the flexibility to participate essentially anywhere, providing they have access to an internet connection. Whether at home or in the office, you are steps away from a computer as opposed to having to drive or fly to a location. This means attorneys have more time to prepare their clients, practice their questions, or organize demonstratives.
    • Time-effective. Attorneys now have the opportunity to depose multiple witnesses in the same day. If a lawyer needed to depose two different witnesses who resided in two different states, there would be no possible way to do both in person on the same day. Holding remote depositions helps cut out days or even weeks-worth of travel. Say goodbye to those pesky calendar conflicts.
    • Exhibits are easily accessible. Lawyers no longer need to worry about shuffling through exhibits during the deposition. Once the exhibits have been gathered, they can be exchanged ahead of time. A technician can also be requested to assist with the management of the exhibits and present them on the screen for all parties to reference when the attorney calls upon them. Screen sharing tools allow you to live in your own case management system during your proceeding, improving fluency and comfort level with your own material.
  • Advanced Technology. It’s understandable that parties may be concerned about technological failures hindering a remote deposition. To ease one’s mind, court reporting agencies always offer testing in advance of the proceeding to ensure that all systems and equipment are compatible and working properly. There are also many reliable platforms to choose from when setting up a remote deposition such as Zoom, Microsoft Teams, or WebEx. Additionally, whether there’s only three participants or 300 participants joining, these platforms can easily accommodate small and large groups.
  • Masks are a hindrance. Some jurisdictions are still enforcing mask mandates. Masks prove as a disadvantage during a proceeding as it makes it difficult for the reporter to hear the witness and counsel. Such obstructions can result in interruptions for clarification or delayed turnaround times for the transcript when the reporter has difficulty deciphering what was said when listening to the recording of the proceeding.
  • Incentive pay isn’t cutting it. Law firms and courthouses are eager to commence in-person proceedings again as many restrictions have been lifted throughout the country. However, since the pandemic, many reporters have adapted to working remotely and with much success, leading them to only accept remote jobs. Working remotely means working from the comfort of their own home while staying safe in the process. Ultimately, cutting out the commute time means more time to cover more jobs.
  • Laws have been redefined due to the pandemic. Lastly, Courts have agreed to amend certain rules when it comes to depositions. For example, Senate Bill 1146 amended Code of Civil Procedure § 2025.310 in September 2020. Subsections (a) and (b) in particular now read:
  1. 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.
  2. Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.

Furthermore, the Civil and Small Claims Advisory Committee recommended that effective January 1, 2022, Rule 3.1010 of the California Rules of Court, be amended to reflect the following:

Rule 3.1010. Oral depositions by telephone, videoconference, or other remote electronic means

(a) Taking depositions

(3)  Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.

   (Subd (a) amended effective January 1, 2022.)

Prior to this amendment, 3.1010(a)(3) had stated:

(3)  Any party may be personally present at the deposition without giving prior notice.

(c) Deponent’s appearance

A deponent must appear as required by statute or as agreed to by the parties and deponent.

(Subd (c) amended effective January 1, 2022.)

Prior to this amendment, 3.1010(c) had stated:

(c) Party deponent’s appearance 

A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer.

With all these advantages, remote depositions have provided the legal industry with an ideal solution to push litigation forward. Considering conducting depositions remotely helps optimize an attorney’s schedule, reduces expenses, and keeps everyone’s health concerns at bay, there are less arguable reasons to require in-person appearances. As we continue to navigate through extraordinary circumstances, there is no doubt we can expect remote depositions to continue in the foreseeable future.

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