| by Heather Duncan, Esq.
In light of the recent changes to the California Code of Civil Procedure (CCP) and the ongoing spread of COVID-19, this month’s Network News revisits the rules for scheduling or attending a remote deposition. As provided below, there may be instances where the deponent’s right to attend remotely and the taking attorney’s right to attend the deposition in person poses a conflict.
California law provides specific and strict requirements that must be complied with in order to properly notice a deposition. These requirements include the intent to take or attend the deposition remotely; however, there is not a requirement that notice be given of the intent to attend a deposition in person.
Under Rule 3.1010 (a) in order to take a deposition remotely, a party is only required to serve notice that it intends to do so and make arrangements for any other party to participate in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it.
The newly revised CCP §2025.310(a) provides that “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 when being sworn in at the time of the deposition.“
The newly revised CCP §2025.310(b) provides that “any party or attorney of record may, but is not required to be physically present at the deposition at the location of the deponent."
While the current rules allow for remote deposition attendance they also allow a party or attorney of record to attend the deposition in person, potentially resulting in a conflict between a witness who wants to socially distance and an attorney who wants to conduct an in person deposition.
As the law currently stands, parties and their attorneys need to coordinate and cooperate in the scheduling of remote or partially remote depositions. If a resolution cannot be reached judicial intervention and guidance may be needed.