Washington’s embrace of remote depositions is contained in a set of court rule revisions issued by the Washington Supreme Court Oct. 27. The rules took effect Oct. 31, the day that the governor’s emergency proclamation addressing court operations during the COVID-19 pandemic expired.
For civil matters litigated in Washington state courts, all depositions will be subject to the following rules:
Presumption of Remote Depositions: With respect to discovery, depositions shall be performed remotely absent agreement of the parties or a finding of good cause by the Court to require the depositions be performed in person. Absent agreement of the parties, with respect to remote depositions where only the deponent and their counsel are in the same room, the technology used must include video/audio for both the deponent and their counsel. If the deposition is being recorded (see CR 30(b)(8)), the recording need only be of the deponent witness and not of other participants to the deposition proceeding.
The new rule’s command that both deponents and their attorney be captured on audio and video is believed to protect against outside influences and coaching that might affect the deponent’s testimony.
During the COVID-19 pandemic, most courts across the country decided motions for remote depositions by asking whether there was “good cause” to conduct the deposition remotely. And, in nearly all cases, courts decided that the health concerns raised by the prospect of multiple individuals conversing in close proximity — typical of deposition practice — did in fact supply the “good cause” necessary to order a remote deposition.
In Washington, the state supreme court’s order flips the former presumption that a deposition should be held in person. Now, the default rule is that a deposition should be conducted remotely unless the trial court can find good cause to conduct it in person.
The “good cause” standard vests trial judges with broad authority to do justice in a particular set of circumstances. “Good cause” for an in-person deposition typically is found when there is a substantial, case-specific reason why a particular deposition should not be conducted remotely. An attorney’s belief, based on litigation experience, that witnesses are more effectively cross-examined (or defended) when counsel is physically present will not likely meet the “good cause” standard.
Temporary Measures Are Becoming Permanent
The Washington Supreme Court’s action is the latest in a string of high court orders in other states seeking to establish remote depositions as a permanent – and favored – fixture in pretrial discovery practice.
In Florida, new rules favoring wider use of remote technologies, proposed by the Florida Supreme Court’s Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19, took effect Oct. 1, 2022. The revised court rules create presumptions favoring remote hearings, giving trial judges broad discretion to order the use of remote technology in all cases, even over the objection of counsel
Similarly, in Minnesota, the state supreme court earlier this year issued orders that set out in detail the types of judicial proceedings that will presumptively be conducted remotely in that state. Going forward, only major civil trials will be presumptively conducted in person in Minnesota. Under the state’s new oneCourtMN Hearings Initiative Policy (PDF), a presumptive hearing format – either “in person” or “remote” — cannot be changed unless the trial court determines that exceptional circumstances exist to make the change.
On Nov. 9, the U.S. District Court for the District of Columbia extended emergency rules that allowed trial judges to make use of remote technologies to conduct a wide variety of criminal and juvenile cases. Federal courts in the District of Columbia currently have a backlog of over 950 criminal cases, “many arising out of the events at the United States Capitol on January 6, 2021,” the court noted. Numerous defendants in these cases, the court noted, live outside the District of Columbia – as do their attorneys.
The continued use of remote technologies in these – and other – cases eliminates the need for travel for defendants, their families, and their attorneys. The use of remote hearings also frees up courtrooms for use in other matters, keeps courthouses from becoming too crowded, and allows cases to move forward in the event that the judge, a member of the jury, defendants or their attorneys, become ill and cannot come to the courthouse.
Court rule changes in Washington and courts across the country are proof that court officials will not return to prior practice and relinquish the efficiencies created by remote technologies without a good reason. And why should they? Remote depositions are a leading tool for chipping away at civil case backlogs. Moveover, litigators have become skilled in conducting depositions remotely, so few judges believe that client interests will suffer if remote depositions become the default choice for obtaining testimony prior to trial. Finally, and significantly, deposition technology vendors have been busy developing innovative solutions to the shortcomings of general purpose videoconferencing technologies that were used to conduct depositions at the beginning of the COVID-19 pandemic.
Many emergency court rules written at the beginning of the pandemic contained, tacitly, the suggestion that remote proceedings were a necessary compromise in the quality of legal proceedings brought on by the necessity of social distancing. But the suggestion that a remote deposition is a less-effective deposition is nowhere to be found in the latest round of court rule revisions. Remote depositions will continue to dominate pretrial practice because they can be just as effective as in-person depositions, they’re favored by clients with large litigation budgets to manage, they increase the value of scarce court reporter and attorney time, and judges – it appears – will insist upon them.