In-person deposition of a party-deponent in the COVID era

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Of all the discovery tools available to litigators, depositions are undoubtedly the most important, particularly a deposition of an opposing party, i.e. a party-deponent. Not only does the deposition provide substantive testimony necessary to properly evaluate the case from a purely legal standpoint, but the deposition of a party-deponent allows all counsel to assess the witness herself, an equally important aspect of risk assessment. How will the party-deponent present to a jury? Is she credible? Will she “crumble” in response to tough questions? Does her body language reflect dishonesty or uncertainty? Our clients are always made aware of both the specific testimony provided by a party-deponent—and its impact on the case—and our impression of the witness. Again, both aspects are necessary for the client to properly evaluate its risk.

Before the Covid pandemic in March of 2020, almost all depositions, including depositions of a party-deponent, were taken “in-person” with the counsel, the deponent, the court reporter, and the videographer in the same room, usually a conference room in counsel’s office. This arrangement allowed counsel to meet the dual goals of the deposition: (1) obtaining crucial testimony, and (2) assessing and evaluating the witness. It also ensured that the party-deponent was not being “coached” by others or improperly relying on documents.

However, to slow the spread of Covid, the California Legislature, the Judicial Council, and Superior Courts enacted emergency legislation and rules to limit “in-person” appearances, including depositions. Many lawyers and, unfortunately, some courts have misinterpreted the emergency legislation and rules and have taken the position that “in-person” depositions are forbidden in light of Covid. To the contrary, although depositions of non-party witnesses can be taken remotely, even under the emergency rules, the deposition of a party-deponent must be “in person” unless legitimate, serious health concerns are raised by the deponent.

The Code of Civil Procedure dictates that a party-deponent must appear in person for a deposition

In California, depositions are governed by various provisions of the Code of Civil Procedure section 2025.010 et seq. Pursuant to section 2025.250(a), “the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.” Prior to the Covid pandemic, section 2025.310(a) provided “that a person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means.” Subdivision (b) gave the court discretion to allow a nonparty deponent to appear at the deposition by telephone if it finds there is good cause and no prejudice to any party. However, it was clear that “[a] party deponent shall appear at the deposition in person and be in the presence of the deposition officer.”

In light of the Covid pandemic, the California Legislature revised section 2025.310 which now provides (emphasis added):

(a) 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 with the deposition officer when being sworn in at the time of the deposition.

(b) Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.

(c) The procedures to implement this section shall be established by court order in the specific action or proceeding or by the California Rules of Court.

(d) An exercise of the authority granted by subdivision (a) or (b) does not waive any other provision of this title, including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted.

By its express language, revised section 2025.310(a) allows the deposition officer (i.e., court reporter) to be in a different location than the deponent. Subdivision (b) allows a party (who is not a deponent) and any counsel to be in a different location than the deponent. But nowhere does the section grant a party-deponent the right to be in a different location than the deposing counsel. In fact, subdivision (b) specifically provides that the deposing attorney has the right to be “physically present at the place of the deposition with the deponent.”

Furthermore, Rule of Court 3.1010(b) provides (emphasis added):

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, email, 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.

Rule 3.1010(c) makes clear that the “deponent must appear as required by statute or as agreed to by the parties and deponent.” Thus, a party-deponent is not permitted to appear at the deposition remotely absent a protective order pursuant to section 2025.420.

The reason for requiring a party-deponent to be physically present at the location of the deposition is obvious. As discussed above, in-person depositions are necessary to assess the deponent’s credibility. Remotely taken depositions are more susceptible to abuse of the deposition process, and the questioning counsel would not be able to discern whether a deponent was utilizing outside sources or communicating with people off-screen which would taint the deponent’s testimony. Furthermore, it is easier for a deponent to be less than forthright when facing a computer monitor, rather than sitting across the table from questioning counsel.

Given the recent enactment of the emergency legislation, there are no published, appellate opinions on this issue. However, a similar issue was raised in a federal court action, Rubio v. City of Visalia, in which plaintiff filed a motion to have three, third-party witness depositions taken remotely, as opposed to in-person. The District Court for the Eastern District of California denied the motion finding that “In-person depositions are crucial to assessing a witness’s potential presentation at trial, veracity, and credibility. Plaintiff’s concerns regarding transmissibility of COVID may be addressed through the extensive precautions outlined by Defense counsel.” (Rubio v. City of Visalia, No. 121CV00286DADSAB, 2022 WL 193072, at *2 (E.D. Cal. Jan. 21, 2022).) Rubio involved the depositions of non-party witnesses, yet the Court still required the depositions to be taken “in-person,” so long as certain precautions were taken. Certainly, the result would have been the same if the deposition in question was of a party-deponent.

When faced with a request by a party-deponent to appear remotely at deposition, the wise litigator will insist that the deposition be taken in-person by relying on the above authorities and providing opposing counsel with a protocol for taking the necessary precautions to avoid transmissibility of Covid (i.e., proof of vaccination/boosters, masking and social distancing).