Massachusetts drops plans for default in-person depositions, considers new proposal to leave remote depositions to “noticer’s choice.”
Massachusetts attorneys may be one step closer to realizing greater flexibility and control over their depositions. The Commonwealth has taken a couple of turns in coming to a new normal with respect to remote depositions. Like many other states, Massachusetts has had to weigh whether a post-COVID reality means returning to business as usual or adopting some of the benefits and lessons learned during the pandemic.
The state previously considered a proposal that would have acknowledged in-person depositions as the default while still reserving a space for remote depositions. The good news — the proposal would have recognized and provided structure for remote depositions. The somewhat underwhelming news — remote depositions would have required party stipulation. While still a welcomed step in the right direction, this prior proposal fell short of such action seen in states like Washington where remote depositions became the presumption, not the exception, to the rule.
Consider the fact that Massachusetts conducted a survey of attorneys in which more than 80% of respondents voiced support to codify remote depositions and it’s easy to question whether relegating such proceedings to stipulation adequately reflects the Commonwealth’s appetite for change. Thankfully, for tech-embracing attorneys in Massachusetts, the state is making another attempt to chart a path forward. After receiving feedback, the Supreme Judicial Court has presented a new proposal. Although not fully embracing the example set by Washington, Massachusetts’ most recent attempt to reconcile change with tradition may provide an interesting take on the future of remote depositions.
According to the Supreme Judicial Court Standing Advisory Committee on the Massachusetts Rules of Civil Procedure, feedback from the prior proposal presented three options:
“The comments broke down into three general categories. Category one supported the Committee’s recommendation of in-person depositions as the default rule. Category two supported remote depositions as the default rule. Category three supported a ‘noticer’s choice’ approach. Noticer’s choice would allow the party noticing the deposition to determine in the first instance whether the deposition would be held in person or remotely.”
The proposal for noticer’s choice currently published for public comment seemingly provides a compromise between default in-person and default remote depositions. But more importantly, it affords attorneys the opportunity to decide for themselves which path is best for their own depositions. If an attorney chooses to use remote depositions, that attorney will be able to notice such without the need for party stipulation, a net positive for attorneys who have embraced remote technology in recent years.
Under the proposed change, Rule 30(b)(4)(A) of the Massachusetts Rules of Civil Procedure would read as follows:
“[B]y notice of the party seeking to take the deposition, a deposition may be taken in a civil case remotely by video-conferencing platform (video-conferencing deposition) in a manner that allows for the deponent, all other persons entitled to attend, and all other necessary persons (e.g., the officer/court reporter) to participate without attending the deposition in person.”
Additionally, proposed rule 30(b)(4)(A)(ii) allows the person before whom the deposition is taken to administer oaths remotely:
“An officer or other person before whom the video-conferencing deposition is to be taken is authorized to administer oaths and take testimony without being in the presence of the deponent, so long as the officer or other person before whom the deposition is to be taken can both see and hear the deponent for purposes of identifying the deponent.”
In sum, what would this proposed change mean with respect to guidance for remote depositions in Massachusetts? According to proposed Rule 30(b)(4)(A)(i) through (v), highlights include the following:
Massachusetts would officially codify remote video-conferencing depositions;- “Noticer’s choice” would authorize attorneys to conduct remote depositions without the need for leave of court or party stipulation;
- The notice would need to provide reasonable advance notice of information necessary to participate in the remote deposition, which would also include an identification of the the video-conferencing platform;
- Massachusetts would officially codify an authorization of remote oaths by the person before whom the deposition is taking place;
- Audio and visual feeds for participating attorneys, self-represented parties, the deponent, and the court reporter would remain on while the video-conferencing deposition is on the record;
- Once identified for the record, remaining participants in the video-conferencing deposition would mute their audio feeds and turn off their visual feeds when not speaking;
- Attendance would be limited to those individuals who would be entitled to attend a live deposition;
- Any person attending the video-conferencing deposition at any time would need to be identified for the record;
- The video-conferencing platform would have to show a real-time list of all attendees, with attendees making reasonable efforts to ensure that they have been identified as being on said list;
- Where counsel and the deponent both share the same physical space for a video-conferencing deposition, each would need to log in to the deposition separately to allow separate identification and the ability to show the deponent separately;
- Either the deponent or counsel would need to alert the other participants to the presence of any person who enters the deponent’s physical space during a video-conferencing deposition;
- Unless otherwise agreed by all parties or ordered by the court, only the deponent may be recorded for a video-conferencing deposition, although the questioning attorney or self-represented party may request a split screen when examining the deponent with respect to exhibits;
- The deponent would have a live feed of the questioning attorney or self-represented party during a video-conferencing deposition; and
- The authority to record a video-conferencing deposition by audio or video means would be limited to the operator/videographer and court reporter.
It’s worth noting that attorneys would still be able to utilize Rule 29 to stipulate changes (in writing or stated on the record) to procedures established by the proposed amendment. Additionally, if adopted, the revised Rule 30(b)(4) would allow a party to motion a challenge to the noticed remote deposition whereby the court, upon good cause, could order an in-person or hybrid deposition in its place. The deadline for public comment on this proposed rule change is December 29, 2023. You can learn more about providing public comment here.
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* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
