Federal Rules Changes for the Next Emergency Weighed

Lawyers from around the country recently weighed in on the need for amendments to the Federal Rules of Civil Procedure to meet the challenges posed by the COVID-19 pandemic and future national emergencies.

Topping the list of proposals are calls for changes to the rules governing remote depositions. Many lawyers and bar groups want remote depositions to become the default option during national emergencies. The current rules, which give one party the ability to demand an in-person deposition that could be delayed indefinitely, create too many opportunities for gamesmanship and unnecessary delay, they argued in comments recently published by the Judicial Conference’s Committee on Rules of Practice and Procedure.

Earlier this year, the committee sought public input on challenges encountered during the COVID-19 pandemic. The committee said it was interested in hearing about situations that could not be addressed through the existing rules as well as situations in which the current rules were frustrating the fair administration of justice.

Comments submitted touched on a wide variety of topics, including:

• rules permitting service of process via email
• uniform national rules for deadline extensions and for handling requests for continuances
• rules to ensure public access to virtual proceedings
• rules eliminating the need to file paper copies of pleadings with parties and the court

However, the bulk of the comments submitted—by far—called on the committee to revise the handful of federal rules that govern remote depositions and remote judicial proceedings.

Make Remote Depositions the Default Option

Federal Rule of Civil Procedure 30(b)(4) allows remote depositions, but only if the parties agree to conduct remote depositions or if the court orders a remote deposition in response to a motion by one of the parties. Many commenters saw this as a problem.

Kessler Topaz Meltzer Check LLP, a class action law firm based in Radnor, Pa., urged that the federal rules be revised to make remote depositions the default means of conducting depositions during an emergency. Specifically, the firm wrote that Rule 30(b)(4) should be amended by adding the following language: “During a declared national or state emergency, depositions may be taken by telephone, videoconference, or other remote means without stipulation or order of the court.”

Several commenters argued that Rule 30(b)(4), as currently written, has the effect of precluding depositions during emergencies because one party can delay the deposition indefinitely merely by refusing to stipulate to a remote deposition.

The comment submitted by Korein Tillery, a St. Louis-based litigation firm, expressed a frequently voiced view among the commenters:

“Given the substantial savings of party time and resources that remote depositions can achieve, the Committee should consider making remote depositions an option available at any time. At a minimum, however, the requirement of a court order or stipulation for remote depositions should be eliminated during times of crisis or national emergency such as a pandemic.”

The Commercial and Federal Litigation Section of the New York State Bar Association urged that remote depositions “be permitted if feasible under the circumstances without the need for a court order.”

The New York group said that attention should also be directed to the interplay of Rules 30 and 28, which can make remote depositions unworkable in some circumstances. Rule 30(b)(3)(A) provides that a deposition takes place where the deponent is located. Rule 28(a) states that the person administering the oath must be authorized to do so under federal law or in the state in which the deposition is taken. In the case of a remote deposition, where the court reporter administering the oath and the deponent may not be in the same state, obtaining a valid oath may not always be possible.

“In the case of a National Emergency, any person authorized to administer oaths under any state law should be permitted to administer the oath to the deponent and should be treated as a person before whom a deposition may be taken.”

The National Association of Shareholder & Consumer Attorneys suggested that Rule 30 be amended to clarify the proper approach for administering oaths and recording depositions conducted remotely.

Lauren Barnes, a partner at Hagens Berman Sobol Shapiro LLP in Boston, commented that recent experiences have demonstrated remote depositions are not merely possible, but “fair and effective” as well. She urged the committee to encourage wider use of remote technologies by amending the rules to allow trial courts to permit discovery disputes to be heard via telephone or video conference.

No commenter argued that remote depositions were unfair or that they should in any way be curtailed in the federal courts.

Several commenters called the committee’s attention to Rules 30 and 31, which require either a stipulation or the court’s permission for a party to take more than 10 depositions. The National Employment Lawyers Association (NELA) remarked that, because some courts have held that both discovery and trial depositions count toward the 10-deposition limit, parties managing litigation during an emergency will limit pretrial discovery depositions in order to preserve their ability to conduct trial depositions for witnesses who might not be able to attend the trial.

NELA urged the committee to amend both rules by adding the phrase “except that a party’s trial depositions of its own witnesses shall not be counted.”

Remote Testimony Should Be Encouraged Elsewhere

Remote hearings are another litigation topic that attracted attention, with many commenters urging the committee to relax the rules around alternatives to in-person proceedings.

George Davidson, senior counsel at Hughes Hubbard & Reed LLP’s New York City office, argued that the committee should revise Rule 43(a) to permit remote testimony without a showing of good cause or compelling circumstances. Current Rule 43, which governs taking testimony in federal courts, is anachronistic and out-of-step with practice before arbitration panels and many state courts, Davidson wrote.

NELA offered a different solution to the same problem. Advisory notes accompanying Rule 43 should be amended to state that a national emergency constitutes “good cause” to take witness testimony remotely.

Rule 45 governs the process for issuing a subpoena for a remote deposition, a hearing, or trial. As currently written, a witness cannot be commanded to appear at a location more than 100 miles from his or her residence.

Many commenters observed that, during an emergency, it is difficult to find an acceptable location to take the witness’s testimony. They urged the committee to revise Rule 45 to permit the witness to appear remotely via technology for “good cause.”

Rule 77(b), which governs the place for trials and other proceedings in the federal system, should be revised to explicitly give courts the discretion to conduct judicial business remotely.

Comments submitted by Bernstein Litowitz Berger & Grossman LLP, a national class action litigation firm, suggested revising the advisory note to Rule 77 to state: “The Court in its discretion may hold hearings remotely by video or telephone conference or other remote means.”

Support for virtual jury trials among commenters was mixed, with some contending that virtual trials should be limited to bench trials only.

The Next Emergency  

One group, the Federation of Defense & Corporate Counsel (FDCC), asked the committee to proceed with caution, to leave courts with flexibility to manage whatever type of emergency might arise and to ensure that, whatever rules changes are made, the rules still protect the constitutional rights of all parties.

The FDCC cautioned against over-reliance on technology as a solution to problems raised by future national emergencies. The COVID-19 pandemic is a health emergency, but next time the emergency might be a crippling cyber-attack, in which case digital technologies will not provide a solution, the group noted.

The CARES Act (H.R. 748) directed the Judicial Conference to examine whether the rules governing federal trial procedure should be updated to meet the challenges posed by the COVID-19 pandemic and future national emergencies.

There is no deadline for committee action on the comments submitted by the legal committee. Action, if any, will come in the form of proposed amendments to the federal rules that the committee might submit to the Judicial Conference and Congress.

The committee published comments received in the areas of civil and appellate procedure (PDF), criminal procedure (PDF), bankruptcy proceedings (PDF), and miscellaneous other topics (PDF).