When the Covid-19 pandemic struck in early 2020, the legal profession scrambled as to how it could proceed without conducting business in person. Emergency Orders were issued by the Judicial Counsel and remote depositions became an everyday occurrence.
On January 1, 2022, California Rules of Court, Rule 3.1010 titled “Oral depositions by Phone, videoconference, or other remote electronic means” was modified to reflect the practicalities of what we learned the previous two years regarding remote depositions.
The new rule removed the requirement that deponents appear in the physical presence of the court reporter.
The second change is that if any party wishes to appear in person with the deponent they must give written notice five court days prior to the deposition. However, this notice requirement does not apply to the deponent’s attorney.
The third change was that any party may appear by telephone or video conference, so long as the requesting party pays the incremental costs; presumably this would prevent requiring deposing or defending counsel to incur the cost of a video setup if the deposition is otherwise being conducted in person
The final change was nonparty deponents are no longer to be treated differently than party deponents. The law used to be that a nonparty had could only appear remotely if a court order was obtained
Rule 3.1010 now reads
(a) Taking depositions
Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:
(1) Notice is served with the notice of deposition or the subpoena;
(2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it;
(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.
(b) Appearing and participating in depositions
Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:
(1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;
(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.
(c) Deponent’s appearance
A deponent must appear as required by statute or as agreed to by the parties and deponent.
(d) Court orders
On motion by any person, the court in a specific action may make such other orders as it deems appropriate.