The Guidelines below were published by the Washington State Bar Association In June 2020 and are available more directly on its web site at Remote Deposition Guidance.  The guidelines are reprinted below.

 

 GUIDANCE ON VIDEO AND OTHER ELECTRONIC DEPOSITIONS DURING THE COVID-19 CRISIS

 

Author:  

Dan Bridges

Past WSBA Treasurer and Governor

Chair, Civil Litigation Rules Revision Work Group

With:

Phyllis Craver, RPR, CCR

President, Washington Court Reporters Association

The Supreme Court by its April 2, 2020 Order Number 25700-B-610 suspended “any local
or state court rule that requires administering any oath or affirmation in person where
such oath or affirmation can be administered remotely by available technologies…” The
intention of that order was to facilitate depositions by technologies such as Zoom, Teams,
Go To Meeting, and other platforms.

Questions have arisen from attorneys and court reporters regarding deposition
procedures to comply with the civil rules while utilizing the court's April 2, 2020 order.
This memo provides guidance on how to accomplish remote, video depositions while
complying with the existing rules.

It is critical to note the WSBA does not give legal advice. Further, the Supreme Court has
made it clear that following guidance from the WSBA is not safe harbor; only the Supreme
Court may determine what the law is. However, given the extraordinary circumstances
and the fact WSBA over time has provided advisory opinions we have collected a variety
of questions regarding video depositions and are providing suggestions below as to how
such issues might be resolved. It may be possible for the Supreme Court to amend the
Civil Rules to better facilitate remote, video depositions. That is outside the scope of this
memo.

This guidance will be provided in a question-and-answer format with a short declarative
answer to facilitate understanding followed by an explanation for the answer.

1. Q: Who should host the proceeding, e.g., establish the video or remote
connection?

A: Any person.

Reason: The Civil Rules do not impose limitations on where a deposition may
take place. A video deposition or other electronic means is merely
providing an electronic room where the proceeding takes place. CR
30(b)(8)(F) identifies requirements that the location of a video deposition
must comply with (suitable in size, quiet, adequate lighting, etc.) but not
where the room itself must be.

2. Q: Should everyone listening to the deposition identify themselves
whether or not on camera?

A: Yes.

Reason: It is established custom and practice at every in-person deposition to
identify for the purpose of the record those in attendance. Although
there is no specific civil rule or statute compelling that, taking a
deposition by remote video does not change the practice of standard
depositions. Further, RCW 9.73.030(1)(a) provides it is unlawful for any
“private communication transmitted by phone… or other device between
two or more individuals between two points within or without the state”
to be “record(ed)…without first obtaining the consent of all the
participants in the communication.” Arguably, no witness or attorney
can give knowing consent without knowing who is present.

3. Q: Must the witness provide identification to prove their identity?

A: No.

Reason: The current rules do not require identification be presented. See CR
30(c). The rule only requires the reporter to put the witness under oath.
RCW 9A.72.010(2) defines “oath,” identifying what is required to be put
under oath. Presenting identification is not a requirement. However, an
aspect of taking an oath is an affirmation the declarant is who they
purport to be. See RCW 9A.72.010(2)(b). The risk of a substitute
witness falsely appearing is no greater in the video context than in
person. If a party has a concern whether the witness presenting is not
the witness noted, the civil rules already provide a mechanism for
addressing that.

4. Q: Must “chatrooms” accompanying a video platform be turned off?

A: No, provided there are not private chats with a witness while being asked
questions during deposition.

Reason: CR 30(h)(5) prohibits “private consultation” with a witness while a
question is pending. Electronic chat cannot be used with a witness as a
means of consultation while a question is pending. That includes both
chat via the video platform and private cell phone or other means.
Additionally, CR 30(h)(6) requires that all attorneys and parties conduct
themselves in during deposition under a “courtroom standard” and to the
extent a chat becomes a distraction, or used to inappropriately influence
a witness, that conduct likely violates that civil rule.

However, it is custom and practice for attorneys to pass notes to each
other to aid in the examination of a witness provided it is not disruptive.
Passing notes by way of an electronic chat is no different provided it is
not seen by the witness in which case it would likely violate CR 30(h)(5)
and should not be done. The “chat” function is often the only way for a
person to identify a technological problem when video or audio fails.

5. Q: Must “chatrooms” be turned off to block other viewers from
witnessing the deposition?

A: No, subject to conditions.

Reason: The Supreme Court has held discovery proceedings are not public
proceedings per se. See Tacoma News, Inc v. Cayce, 172 Wn.2d 58,
71-72 (2011). Unrelated persons have no right to attend a physical
deposition; electronic, remote depositions are not different. However,
provided all those present are identified for the purpose of the record, as
explained in response to question two above, and there is no case
specific reason why a person's attendance would be prohibited if held in
person, i.e., non-party witnesses are generally excluded, a protective
order may be in place, or sensitive issues may be discussed, that a
deposition is by a video platform does not change the existing rule on
attendance of other attorneys, parties, etc., at a deposition.

6. Q:  Does HIPAA impose requirements that must be uniquely met for
a remote video deposition?

A:  No. However, safeguards are available.

Reason: As noted above, the court's April 2, 2020 order does not change any
aspect of depositions other than remote attestation. There was no
aspect of the civil rules that imposed restrictions or safeguards
regarding HIPAA. Taking a deposition with remote attestation does
not change that.

This question raises more of a technology issue and the need for all in
attendance to identify themselves, than a civil procedure issue as
described above in response to questions two and five. Everyone in the
proceeding should identify themselves and if they do, there should be
no HIPAA complication. In that regard, security as to an
electronic conference room is no different than a physical conference
room. As an attorney would not allow a stray person to enter a
conference room discussing sensitive issues, they should not
allow that in a video deposition.

Although use of remote depositions require party agreement, see CR
30(b)(7), it is suggested parties should not use HIPAA or other
protections to erect objections to proceedings unreasonably.
Provided the technology is used correctly, the likelihood of
unwanted intrusion appears slight with unwelcome entry typically being
the result of participants not properly safeguarding login credentials.
However, Zoom and similar platforms have options to ensure
uninvited people cannot enter and to constructively “lock” the door
to prevent others joining. Zoom also offers what it calls a “HIPAA
compliant” conference being used by medical providers to mirror the
secrecy of a doctor's physical office. It is not suggested that need be,
much less should be, done for every deposition where medical issues
are discussed but is identified here as an option if the parties
reasonably deem it necessary.

7. Q: May a witness be allowed to view information without disclosing that
to counsel?

A: No.

Reason: Although there is no specific civil rule or statute addressing this, it is both
custom and practice and adherence to a courtroom standard that any
materials viewed by a witness are marked as an exhibit unless the
parties agree it need not be marked. Further, adherence to a courtroom
standard does not allow a witness to view materials in order to assist
their testimony unless the requisites of ER 612 are satisfied requiring
the adverse party an opportunity to review the material the witness has
used to refresh their recollection in order to “cross-examine the witness
thereon.”

8. Q: May a party use the “record” function of a video platform to record
the deposition?

A: Yes, subject to the following issues.

Reason: (1) RCW 9.73.030(1)(a) requires notice must be given and consent
obtained if an electronic communication is recorded. Court reporters
already routinely record depositions to assist with transcription.
Recording via the platform should be no different.

(2) If the intention is to take a video deposition, the requisites of CR
30(b)(8) must be satisfied. If the case is Federal, the concurrent rule
must be satisfied. If that is not done, the recording should not be
considered a video deposition under the applicable Rule. It is simply a
recording.

(3) If any party or witness objects, RCW 9.73.030(1)(a) may prohibit the
recording.

9. Q: How should deposition exhibits be handled?

A: There is no difference as compared to a standard, in-person deposition.
Reason: The Supreme Court's order allowing remote affirmation only changed
the rule regarding affirmation. It did not affect other rules regarding
exhibits nor did it excuse compliance with them. Arguably, a party
desiring to use exhibits at a remote deposition must make arrangements
in advance that satisfy the standard rules. Best practice likely requires
providing all parties, the witness, and the court reporter all exhibits in
advance. If that is not possible or the parties deem it not necessary,
arguably CR 30(b)(7) allows the parties to agree to a procedure they
deem fair and appropriate.

10. Q: Does the oath need to be modified or must there be an additional
disclosure the deposition is being taken pursuant to CR 30(b)(7)
whereby the parties have agreed to take a deposition by “telephone or
by other electronic means?”

A: No.

Reason: Telephone, remote video, and other electronic depositions were already
permissible and that type of notice or modification to the oath was not
required. The only modification by the April 2, 2020 Supreme Court order
was to allow the oath to be administered without the deponent being
physically before the reporter. No additional language need be stated to
comply with that order; it is self-executing.

11. Q: Should parties and/or the witness be required to turn off their cell
phones?

A: No.

Reason: That is not required now and nothing in the April 2, 2020 Supreme Court
order alters that. However, see the guidance in response to questions 4
and 6.

12. Q: Which party bears the burden of ensuring the function of the
technology being used?

A: Each party is responsible for their own technology.
Reason: CR 30(b)(7) already allows parties to agree to telephonic or remote
depositions. Nothing in the April 2, 2020 order changes that. A party who
agrees in accord with that civil rule arguably does so subject to the ability
to effectuate that agreement no differently than any other agreement
under CR 2A. A more difficult issue is a failure of technology or a lack
of preparation by one party that precludes any participation in the
deposition. Guidance will not be provided on that contingency but it is
suggested parties consider CR 1 indicating all rules should be
“construed and administered to secure the just, speedy, and
inexpensive determination of every action.” (Italics added). It is
suggested taking a deposition, knowing a party is not participating due
to a failure of technology, would likely not constitute the “just”
administration of the rules.

13. Q: Who should pay the associated cost?

A: That is for the parties to decide.

Reason: CR 30(b)(7) requires the parties to agree to a deposition by means other
than an in-person stenographic reporter. Such an agreement inherently
implies an agreement as to who will bear that cost. Custom and practice
suggests that costs fall to the party requesting the deposition no
differently than the noting party pays the appearance fee for the court
reporter. However, the civil rule allows the parties to reach any
agreement in that regard.

14. Q: How should remote video depositions be noted?

A: Any notice should provide all information necessary to access and attend
the remote deposition.

Reason: CR 30(a)(1) requires, among other things, that the noting party “shall
state the time and place for taking the deposition.” If a deposition is to
be taken by electronic means that inherently requires all necessary
phone numbers, URLs, passwords, and any other information required
to access the video deposition be provided in the notice of deposition.
Further, while not required by the rules, best practice would be for all
participants to provide a phone number for use as needed.

15. Q: Can an unwilling witness be compelled to attend an electronic or
remote video deposition?

A: No.

Reason: There are several reasons.

(1) CR 30(4) requires that “testimony at a deposition… by other than stenographic
means” be done by the stipulation of the parties. Although the word “party” most
often refers to the plaintiff and defendant, it appears inconsistent to not consider a
third-party witness a party in this context particularly given third-party witnesses
have the right to object to a deposition subpoena under CR 45(c)(2)(B). It appears
better reasoned that a third party-witness would have to agree to deposition in that
manner. Also and independent of that;

(2) Inherent in CR 45(e)(2), and explicitly in CR 45(h) which sets forth the form a
subpoena “should… substantially” follow, is the requirement the witness be timely
noticed of a specific physical place where the testimony shall be given. Even
assuming an electronic conference room may constructively be considered a
place, there appears to be no authority under the civil rules to compel a
disagreeable witness to have, or utilize on-demand, the technology required to
attend such a deposition. While the civil rules provide attorneys the ability to issue
subpoenas compelling physical presence, there is no provision providing authority
to compel someone to access a video conference room or phone conference call
much less to utilize their own technology to make themselves available for it.
However, arguably such a witness could be physically compelled to a location
assuming compliance with CR 45, and then remote technology used for others
including the court reporter to attend.

16. Q: Must a witness be paid a witness fee and mileage to present at a
remote, video deposition?

A: Yes to a witness fee. No to mileage unless they actually travel.

Reason: RCW 2.40.020 requires payment of a witness fee “upon demand” by the
witness for their attendance. Attendance electronically takes place
whether or not they travel. However, if they are not traveling, the statute
does not require payment of mileage. Mileage is payable only for “going
to the place where they are required to attend.” Id.
It is not the intention of this guidance to provide technology advice. There are a great
many issues that may arise that are technical, and require a technical solution, but are
not within the scope of the civil rules. It is suggested however, as explained in response
to hypothetical question 12, CR 1 imposes duties on attorneys as to any proceeding that
are not obviated by proceeding by a remote, video deposition