How New Rules for Virtual Hearings Affect Remote Depositions as Well

The rapid transition to technology-enabled remote court hearings shows no signs of abating, with several state supreme courts proposing in recent weeks amendments to civil procedure rules that would standardize virtual justice norms in their jurisdictions.

These rules changes deserve careful scrutiny from litigators. Proposals that would establish technology standards and fairness rules for remote court hearings are almost certain to create a de facto set of baseline rules for remote depositions as well. In some jurisdictions (e.g., Georgia), the new rules for virtual court hearings explicitly state that they apply to remote depositions as well.

Litigators may also find the new rules on virtual court hearings to be a valuable source of language to include in remote deposition protocols.

In Vermont, for example, the state supreme court has opened a comment period on proposed technical standards for remote and hybrid proceedings as well as amendments to civil procedure rules creating a framework for deciding when remote or hybrid proceedings are appropriate in civil cases.

The proposed Vermont rules would give trial judges discretion to order either a fully remote or a hybrid virtual hearing for all nonevidentiary proceedings. Evidentiary hearings could be held virtually upon the trial court’s finding of “good cause” to do so.

Proposed technology standards in Vermont would, if adopted, require trial courts to ensure that participants be able to see and hear all witnesses and all other participants, and that the technology in use allows private conferences among lawyers and their clients. Litigators will no doubt recognize these types of procedural protections. They’re commonly found in most remote deposition protocols.

In Georgia, the state supreme court published new rules governing what it calls “virtual events” – a term that covers a wide array of traditionally in-court proceedings plus pretrial discovery depositions. Thus, in Georgia effective March 1, remote depositions will now need to conform to the minimum procedural requirements established in new Georgia Uniform Superior Court Rule 9.2 (PDF). These include:

  • Secure breakrooms/chatrooms. Arrangements must be made to preserve the confidentiality of attorney-client communications and privilege in accordance with Georgia law.
  • Transparency and integrity. Participants must be able to see, hear, and communicate with each other simultaneously;
  • Exhibits and physical evidence. Participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceeding, either by video, facsimile, or other method.
  • Video quality. Technology used to transmit and display deposition video must be adequate to allow participants to observe each other’s demeanor and nonverbal communications.

The new Georgia rule also authorizes remote participation by interpreters.

The rules changes in Georgia and Vermont are part of a national trend toward virtualization in all aspects of court administration, from public access to electronic filing to jury selection.

Earlier this year the Idaho Supreme Court created a task force to study ways to permanently establish a role for remote hearings in its courts.

Iowa is doing the same. A task force there has been formed to recommend new court rules to standardize the use of remote proceedings in both civil and criminal cases.

Courts in MarylandArizona (PDF), Minnesota, and Connecticut (PDF) have already released guidelines for conducting remote hearings. Many of these state efforts build on the National Center for State Courts’s remote proceedings toolkit, published in late 2022.

Procedural reforms that encourage greater use of technology generally, and virtual hearings specifically, are a welcome and timely development.

Virtual proceedings create efficiencies for those courts across the country that are still working through extensive case backlogs built up during the COVID-19 pandemic. Not only do courts now have the technology to expand the availability of virtual hearings, they also have recently acquired expertise within the legal community on how to effectively conduct remote hearings.