Depositions from Home

| by Heather Duncan, Esq.

Due to current public health concerns, this month’s Network News will revisit the rules and platforms available for taking and attending depositions remotely.

Although a deposition done in-person is generally preferable, there are times that a remote deposition makes more sense. In the past, the usual reason given for remote depositions was to save money. Now, the best reason may be to prevent the potential spread of germs.  

The California Code of Civil Procedure section 2025.310 addresses the use of remote deposition technology as follows:

  • A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means,

  • The court may expressly provide that a nonparty may appear at the deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent shall appear at the deposition in person and be in the presence of the deposition officer.

Under these rules an attorney may take, defend or simply attend any deposition remotely, without the need of either a court order or a stipulation, but a party deponent is generally required to be in the same room as the court reporter.

Although the above language requires that a party deponent appear in person, in some instances it may be worth the extra effort to submit a stipulation to the court and obtain the judge’s signature allowing the deponent to attend remotely, citing CCP 2016.030 which allows parties to stipulate to modify the normal discovery procedures.

If you decide to take a remote deposition, be sure to do the following as outlined in California Rule of Court 3.1010:

  • Serve notice of the intent to take the deposition by remote means with the deposition notice or subpoena;

  • Arrange for any other party to participate in the same way at the participant’s expense (if the other party gives notice at least three days before the deposition);

  • Permit any party to personally attend without giving prior notice;

  • Have the deponent sworn in in the presence of the deposition officer or by any other means stipulated to by the parties or ordered by the court.

Finally, once a decision has been made on appearing remotely a platform must be chosen. There is always the use of a telephone. There are also video-conferencing and internet-based solutions such as Network Now. Most people are familiar with telephone and videoconference but may not have tried internet-based solutions. Network Now is as easy as Skyping with your parents or Facetiming with your friends. All that is required is a laptop with a webcam and an internet connection. A conference call component can also be added to enhance the quality of audio transmission.

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