Massachusetts appears poised to become the latest jurisdiction to permanently embrace — and regulate — the practice of conducting pretrial discovery with remote depositions. A public comment period recently closed on a proposal that would make in-person depositions the “default” option while encouraging remote depositions by creating a set of detailed ground rules to ensure fairness to attorneys and their clients.
A memorandum from the Massachusetts Supreme Judicial Court’s advisory committee on civil procedure rules accompanying the release of the proposed court rule explains that the new remote deposition ground rules are informed by the Massachusetts Supreme Judicial Court’s orders during the COVID-19 Pandemic and the views of Massachusetts attorneys expressed in Attorney Survey on the Future of Virtual Technology in the Courts, published in February 2022.
The survey found strong support for remote depositions among the state’s attorneys, but with the caveat that “care should be taken to maintain equity and fairness.” According to the report, more than 80% of attorneys responding supported the continuation of remote depositions. However, concerns were expressed regarding the increased possibility of unethical behavior and the difficulty of assessing a witness’s credibility via a computer screen.
Massachusetts Rule Captures Lessons Learned
Under proposed Rule 30 of the Massachusetts Rules of Civil Procedure, in-person depositions would be the “default” means of discovery through oral testimony. Remote depositions would be permitted by court order or by agreement among the parties.
The bulk of proposed Rule 30 addresses fairness concerns arising from remote depositions. A large set of highly detailed provisions create a baseline level of procedural protections for remote depositions in Massachusetts. Among them are:
- the notice of a remote deposition must provide all information needed to participate in the remote deposition; at a minimum, the notice must identify the remote video-conferencing platform
- the person administering the oath must be able to see and hear the witness
- sound and video feeds for the witness, participating counsel, and the court reporter must remain on while the deposition is on the record
- any person who attends a remote deposition, at any time during the deposition, must be identified for the record
- the video platform used for the deposition must be able to show a real-time list of those persons attending the deposition
- only the witness’s counsel and in-house counsel for a party-employed witness are permitted to be in the same physical location as the witness during a remote deposition
- witness counsel and in-house counsel must separately log in to the remote deposition so that they are individually identified during a remote deposition
- if any person enters the room where the witness is located during the deposition, the witness or counsel in the room shall immediately notify the examining attorney or self-represented party
- a remote deposition shall be considered taken at the place where the witness is located
Proposed Rule 30 also addresses several issues relating to video recordings. The legal videographer would be allowed to video-record only the witness, “except that … a split screen may be used as necessary to record an exhibit while the [witness] is being questioned concerning the exhibit.”
No one other than the legal videographer and court reporter would be permitted to record the deposition.
Proposed Rule 30’s restrictions can be modified by stipulation or court order. Attorneys would have the authority to add to the deposition rules with stipulated measures of their own.
The proposed Massachusetts rule may be revised in response to public comments. Court officials indicated that comments will be shared with the public at a future date.
Remote Depositions Solidify Standing Within Profession
The proposed Massachusetts remote deposition rule is the latest in a series of court rule amendments across the country that seek to preserve the technological advances necessitated by the COVID-19 pandemic. In the past year, Florida’s courts made remote depositions a permanent part of pretrial discovery practice there. Minnesota recently established guidelines for deciding when remote technologies are appropriate. In Washington state, new court rules issued in October 2022 made remote technologies the default means for taking depositions.
And just last month the American Bar Association published “best practices” guidance, a sure sign that remote depositions have gone mainstream within the legal profession.