Over the last two years, we’ve had plenty of time to consider how the COVID-19 pandemic has shaped how the depositions industry has evolved. Witnesses, once questioned from across a table, are now communicating through a computer monitor. Even after lifting restrictions, remote depositions have proven to still be the way forward as telecommuting has become a perpetual and preferred element of our work lives.
On March 4, 2020, as efforts to stop the spread of COVID-19 ensued around the world, California Governor Gavin Newsom issued an executive order instructing all residents to remain at home. Thereafter, the California Judicial Council adopted Emergency Rules to the California Rules of Court. Emergency Rule 11 allowed depositions to proceed through remote electronic means. Emergency Rule 11 was repealed effective November 13, 2020, but was replaced by law on September 18, 2020, Senate Bill 1146 was approved by Governor Newsome, and Emergency Rule 11 was superseded by Code of Civil Procedure § 2025.310(a). This new law meant the deponent was no longer required to be physically present with the deposition officer, allowing the deponent or the deposing party to elect to have the deposition officer attend via telephonically or other remote electronic methods. Similar legislation swept states across the country.
Now, although two years have passed, we still see the lasting effects of how much has changed. Prior to March 2020, California Rules of Court, Rule 3.1010(c) once read: “A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer.” Effective January 1, 2022, CRC Rule 3.1010(c), has been amended as such: “A deponent must appear as required by statute or as agreed to by the parties and deponent.”
Seemingly, the rules of court not only allow remote proceedings, but encourage them. These amendments to the CRC indicate a shift; where once the burden of proof of prejudice was on the party hoping for remote appearance, now burden of proof is on those who wish to collocate.
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.)
Although the new laws and rules offer lawyers alternative ways to move their cases forward, there are some that will still prefer in-person proceedings, both in and out of court. At the same time, many have adapted to working from home and may not be as inclined to return to in-person appearances. Regardless of preference, it is undeniable that remote depositions are the new normal and are increasingly supported by legislative bodies across the nation.