Washington to consider proposals on remote depositions and tech security.
When it comes to state approaches to this post-pandemic new normal, Washington stands out for its forward-thinking embrace of remote technology. As discussed in January’s Devising Depositions blog post, Washington may represent somewhat of a paradigm shift on both the federal and state level, a shift that values the role remote depositions can play to curb costs and provide flexibility. Most notably, the Washington Supreme Court issued an executive order stating a preference for remote depositions. However, recent proposals from the state’s Board for Judicial Administration seek to codify changes to procedural rules before supreme court orders expire. The result is a set of proposed amendments that focus on remote depositions and the importance of continuing education in technology security.
The start of the new year came with several proposals from the Remote Proceedings Work Group of the Washington Board of Judicial Administration. Let’s take a closer look at some of the areas that could be affected if changes are adopted:
Codification and structure for remote depositions:
Proposed amendments affecting remote depositions focus on Washington Superior Court Civil Rules (“CR”) 30(b)(7) and 30(h). Whereas current rules discuss depositions by electronic and telephonic means, proposed amendments would specifically reference and detail proper conduct for remote depositions.
Under the proposed amendments, remote deposition would look like this:
- As with in-person depositions, a party’s right to notice a remote deposition would be codified pursuant to the Washington Superior Court Civil Rules of Procedure;
- Parties would be encouraged to settle the manner of remote versus in-person depositions prior to sending the notice of deposition;
- Objecting parties would have until three days before the noticed deposition to file a motion for a protective order;
- The court would be able to consider a number of factors when deciding disputes concerning remote versus in-person depositions, including, but not limited to, the witness’s role in and complexity of the case at issue, the extent to which a remote deposition may be prejudicial to a party or witness, the court’s subpoena power whereby a party could question a witness in person, and whether the mode of deposition furthers the objective to “secure the just, speedy, and inexpensive determination of every action” as stated in CR 1.
Ultimately, such changes would result in the rewriting of CR 30(b)(7), doing away with reference to electronic and telephonic depositions to read as follows:
“Any party may take a deposition in person or by remote means. Parties are strongly encouraged to agree to the mode and manner of deposition, in person or remote, before notice is served. The deposition shall proceed as noticed unless within three days of receipt of notice an objecting party or the deponent files a motion objecting to the notice. In determining whether a deposition shall proceed in person or by remote means, the court may consider the following non-exclusive factors and any other factor the court deems appropriate: (a) the role of the witness in the case, (b) the complexity of the case, (c) whether there will be prejudice to any party or the witness if testimony by remote means is permitted, (d) whether the witness is subject to the court’s subpoena power and, thus, whether a party will at any point have the opportunity to question the witness in person, and (e) whether the noted mode of deposition serves the purposes of CR 1.”
As for conducting remote depositions, proposed rule changes would add a subsection (7) to CR 30(h), which would outline the following process and set of safeguards:
- With respect to video conferencing technology, the witness’s demeanor and appearance may not be altered;
- Unless stipulated otherwise, attendees allowed in the same room as the witness are limited to counsel (and employees of same), the lawyer who has retained an expert witness, the court reporter, videographer, and interpreter, with all attendees remaining visible and audible for the duration of the deposition;
- For video depositions, the videographer may only record the witness, not other attendees;
- Unless requested by the taking attorney, the witness may not consult any notes or communication (e.g., email, messages, etc.); and
- Any attempt to influence the deponent’s answers, whether through written notes, electronic messaging, verbal or visual direction, is prohibited.
Those interested in sharing their thoughts on these proposed changes will have until April 30, 2024 to submit their comments.
Required Continuing Legal Education credit for technology security:
It only makes sense that a forward-thinking approach to legal technology should also entail an understanding and appreciation of technology security. As we’ve previously discussed on this blog, when it comes to remote depositions and cybersecurity, What You Don’t Know Can Hurt Your Client. More broadly, states throughout the country are adapting to a world that seeks to embrace technology while still protecting sensitive information. Washington is one such state. If successful, a proposal by Washington’s Mandatory Continuing Legal Education Board would highlight the issue of technology security.
The proposed amendment would add language to Washington’s Admission and Practice Rules, requiring Washington attorneys to obtain one annual credit in the area of technology security. Among other things, the amendment would define technology security to include, “protection of confidential, privileged, and proprietary information . . . risk and privacy implications . . . [and] unauthorized electronic disclosure of confidential information, including through social media, data breaches and cyberattacks[.]” As described in the cover letter to this proposal, this change reflects a key ethical obligation:
“Legal professionals have an ethical and common law duty to take competent and reasonable measures to safeguard client information. They also have contractual and regulatory duties to protect confidential information. Rules 1.1, 1.3, and 1.4 of the Rules of Professional Conduct (RPC) address lawyers’ core ethical duties of competence, diligence, and communication with their clients. . . With the advent of the global pandemic and an increasing number of legal professionals practicing ‘virtually,’ it is imperative that lawyers, and all legal professionals, stay cognizant of their ethical responsibilities.”
As with the proposed amendment for remote depositions, interested parties will have until April 30, 2024 to submit their comments on this proposal for continuing legal education in technology security. Such proposals on technology security and remote depositions demonstrate that Washington recognizes the shift towards responsible, safeguarded technology that allows attorneys to advocate client interests with increased care and efficiency.
When it comes to deposition reporting, Readback appreciates the intersection of remote technology and cybersecurity. Readback’s tech-enabled parent company, InfraWare, is experienced in providing medical transcription services with an understanding of how to handle sensitive, confidential information to comply with HIPAA regulations. Readback prides itself on its state-of-the-art technology, but also believes in necessary safeguards to protect customer interests. The result is efficiency and security.
Readback is a non-stenographic remote service that operates through its own Multi-Intelligence Service Team to deliver a game-changing deposition experience. Readback’s patented speech-to-text technology captures the testimony while a guardian conducts the deposition. Simultaneously, a team of human transcribers with access via live feed works to ensure a verbatim transcript. Readback’s flagship tier, Active Reporting, offers certified transcripts in one day, rough drafts in one hour, and access to near-time text during the proceeding. It’s a forward-thinking service for forward-thinking attorneys. Need more information? Visit Readback’s Frequently Asked Questions page to learn more.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
