Over the past year, attorneys have faced many roadblocks during litigation. Due to the pandemic, some were forced to rely on alternative strategies for advancing their case. In California, one of these strategies is based on Emergency Rule 11, which alters the traditional rules of procedure.

In this article, we’re going to explain the central principle of Rule 11, the benefits and disadvantages associated with the policy, and review how the rule was impacted by S.B. 1146. Let’s get started!

What is Rule 11?

In April of 2020, the California Judicial Council adopted eleven emergency rules. Rule 11 went into effect immediately, and it would remain in effect until 90 days after the Governor lifted the state of emergency (or until it was repealed). The rule states:

“Notwithstanding any other law, including Code of Civil Procedure section 42 2025.310(a) and (b), and 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.“

The Implications of the Rule

The primary change resulting from Rule 11 is that California attorneys now had the opportunity to move their cases forward without the risk of contracting coronavirus through physical proceedings. The occasional disputes over remote depositions were rarely settled in favor of parties advocating in-person appearances. Recently, one New York court offered the following succinct assessment: “Virtual depositions do not cause undue hardship in light of the technology currently available and the serious health risks posed by the COVID-19 virus.”

Changes Under S.B. 1146

On September 18th, Governor Newsom signed S.B. 1146 into law. This bill transformed Rule 11 from a temporary solution to a permanent addition into California’s discovery statute. The new law “deleted the provision in Section 2025.310 that authorized a court to order that a non-party deponent appear by telephone, and instead permits the deponent or the deposing party to have the court reporter attend the deposition by telephone or other remote electronic means.” In addition, S.B. 1146 permits all participants and attorneys of record to make individual choices regarding whether they will be physically present or appear remotely.

Final Thoughts

In California, Emergency Rule 11 was critical to the advancement of court cases during the pandemic. As the world adapts to life after coronavirus, we have successfully eliminated many of the obstacles that remote depositions faced in the past. Thanks for reading!

If you enjoyed this article, let us know on social media! Lastly, please don’t hesitate to contact us with any questions or concerns. When you’re ready to schedule your next deposition, consider partnering with an experienced legal support company like First Legal Depositions.