Despite Advantages, “Cameras On” Remains Minority View

When the Florida Supreme Court declined earlier this year to mandate that all participants in remote depositions appear on camera, it rejected a fair amount of expert advice urging a different conclusion:

• The high court’s own Rules of General Practice and Judicial Administration Committee, which proposed a “cameras on” requirement, believed the integrity of the remote deposition process was at stake. “Without a judge presiding, bad behavior can occur during virtual depositions such as witness coaching or other interference,” the committee argued in its report.
• The Florida Court Reporters Association supported “cameras on” as well, writing in a letter to the rules drafters earlier this year that “cameras on” helps court reporters produce an accurate deposition transcript. “In proceedings with multiple participants appearing remotely, being able to clearly observe the speaker ensures that the speaker does not appear as an unidentified speaker or as the wrong speaker in a transcript,” the association argued.
• The American Bar Association officially supports a “cameras on” requirement for remote depositions. In Resolution 505 Best Practices for Remote Depositions, approved Feb. 6, 2023, the ABA stated that remote deposition platforms should provide “satisfactory views of the court reporter, other counsel, and the witness to allow for visual observations like a hearing or trial.” Moreover, the ABA advised, “the attorney conducting the examination should consider requesting or stipulating in advance of the deposition that all in attendance (including any other attorneys, paralegals, or staff) also be required to be on camera.”
• The Florida Bar’s Best Practices for Remote Court Proceedings guidance provides that, during a remote deposition, “one video camera shall show the witness and at least one video camera shall show the witness’s counsel.”

Notwithstanding the obvious benefits of a ‘cameras on’ requirement, and the support of several legal and court-reporting organizations, this seems to be an idea whose time has not yet come. As a one-size-fits-all mandate, at least.

Florida’s high court, for the time being, believes otherwise. Up for consideration in Florida was a minor rules change that would have added a new subsection (f) to Rule 2.530 of the Florida Rules of General Practice and Judicial Administration:

1. Deposition Conducted by Audio-Video Communication Technology. During a deposition conducted by audio-video communication technology, the deponent, the deponent’s attorney, and the attorney questioning the deponent must be visible at all times unless otherwise agreed by the parties or ordered by the court.

In an order dated May 14, the Florida high court declined to adopt the proposed rule amendment. “We instead refer the matter to the Civil Procedure Rules Committee and ask it to consider proposing an amendment regarding the use of audiovisual communication technology during a deposition in existing Florida Rule of Civil Procedure 1.310 (Depositions on Oral Examination).”

The court’s civil procedure rules committee will hold its fall in-person meeting on Sept. 17 in Orlando. There’s no indication from the committee’s website whether revisions to Rule 1.310 will be on the agenda.

Few States Mandate Video Presence

Currently, Massachusetts is the only state that requires all remote deposition participants to be visible on camera. The Massachusetts rule is highly prescriptive, mandating that the deposition services vendor must have the ability to provide a means of showing on camera the deposition witness and each other participant separately, as well as a means of showing the deposition witness a video feed of the questioning attorney. Audio and video feeds for the deposition witness, for all participating attorneys, and for the court reporter “must remain on while the video-conferencing deposition is on the record,” according to the rule.

Elsewhere, states are decidedly less demanding. A sampling of larger jurisdictions reveals the following:

• Georgia Uniform Superior Court Rule 9.2 sets baseline technology/fairness standards for remote court hearings generally; those standards extend to remote depositions but the rule isn’t a dedicated deposition camera mandate.
• Texas rules address notice, non-stenographic recording methods, and who may attend, but don’t require participants to be visible at all times.
• In California, California Code of Civil Procedure § 2025.340 governs recording quality — lighting, non-distortion, on-camera oath/statements — but not continuous visibility.
• Illinois largely follows the federal framework for remote depositions, which strongly suggests the absence of a “cameras on” mandate. However, the Illinois Supreme Court’s Policy on Remote Court Appearances requires — for court hearings, not depositions — that all participants be able to see each other at all times for remote court proceedings.

Notwithstanding the obvious benefits of a “cameras on” requirement, and the support of several legal and court-reporting  organizations, this seems to be an idea whose time has not yet come. As a one-size-fits-all mandate, at least. Litigators can seek agreement on, or a court order requiring, a cameras-on protocol in their remote deposition protocols, a common strategy for safeguarding the integrity of remote depositions.