CALIFORNIA CIVIL DISCOVERY LAW
TECHNOLOGY
APPLICATIONS FOR CIVIL DISCOVERY
© Richard E. Best 1998-2003 All Rights Reserved
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The obvious reason to attend a deposition by remote electronic means is to save time and money wasted on travel but that is reflected in many ways not the least of which is improvement in the quality of life and in the practice of law. Consider the following: improve client services, cost effective, ease of use, increase productivity, improve trial preparation, increase billable hours, quality of life issues. Improved quality of life and practice of law can take many forms such as the following:

Avoid logistical problems in scheduling of depositions

Finding agreeable dates for lawyers and parties = Herding of cats
Flight & hotel reservations
Rearrange other commitments
Magnified by number of participants, number of depositions and case loads

Avoid motions to compel or to schedule depositions, usually preceded by an ex parte request to shorten time on the motion, due to scheduling issues

Avoid time and money required for travel logistics:

Spend time on legal work rather than travel chores

Packing of bags
Cab or van to airport or search for parking
Lines to access gates, to check in, to get on plane
Security and metal detectors
Weather conditions and delays

Bill clients for legal work rather than travel time and expenses

Improved practice by increased efficiency

Spend 3 hours to take a video depo from your office OR 3 days to travel to and from the deposition
Take 3 depositions in one day or in nine days
Handle last minute and unexpected discovery with ease

If you are a busy lawyer you may not have time to travel to every deposition. But there may be other reasons for remote attendance as a supplement to attending. Other lawyers, experts and witness may want to observe or even participate by remote electronic means in part or all of a deposition while a colleague or co-counsel is present at the deposition.

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BACKGROUND & REASONS FOR LEGISLATION

For years, many states and the federal courts expressly authorized depositions by telephone or other remote electronic means. In 2002 California joined those jurisdiction with the enactment of Code of Civil Procedure Section 2025(h)(3). Prior thereto, depositions had been taken in California litigation by telephone or videoconference either by stipulation of the parties or pursuant to court orders entered in specific cases. However, obtaining a court order or stipulation was an unnecessary consumption of time and money and there was no express authorization for the practice. In some cases, emergencies arise at the last minute that would prevent a person from attending a deposition in person and would, as a practical matter, prevent a person from obtaining a court order. The enactment of CCP§2025(h)(3) provides the right to a practical remedy of attending the deposition by telephone or other remote electronic means without the necessity of motions and court intervention.


Effective 2002, the California Code of Civil Procedure was amended to provide expressly in Section 2025(h)(3) that any "person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means". The legislation was written and proposed by Commissioner Richard E. Best of the San Francisco Superior Court who participated in the legislative process. It provides a right to so attend without the necessity of a prior order or the consent of anyone, without any reason or justification, and without preconditions or limitations. It is designed to facilitate the discovery and litigation process and to provide for the use of proven technology to achieve cost effective discovery.

California Code of Civil Procedure §2025(h)(3) provides:

"(3) A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. The court may expressly provide that a nonparty deponent may appear at his or her deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer. The procedures to implement this section shall be established by court order in the specific action proceeding or by the California Rules of Court."

The additon of the second sentence resulted from the proposal of trial lawyers involved in mass tort litiation to avoid the need to produce experts in California for deposition especially when such experts had been previously deposed. However, it was not limited to that circumstance. For distant deponents, the deposition can set in the deponent's locale and the lawyers and others have the riht to appear by telephone or other remote electronic means. The law does not affect the basic deposition process: depositions are to be noticed and taken at specific times and places; deponents are obligated to appear, be sworn, and answer questions in the presence of a court reporter at a specifice site where the deposition takes place; any person entitled to attend a deposition may be present at the deposition site, etc. The only change was to provide a right for non-deponents to appear by remote electronic means in order to reduce litigation costs and facilitate the discovery process.

A few principles are clear from the statute:
1. There is a right of non-deponents to attend by telephone or other remote electronic means.
2. That right is not provided to the deponent who must attend at the deposition site, with one limited exception.
3. A party deponent must appear and be in the presence of the deposition officer without exception.
4. The deponent will be at the deposition site [with one express exception] and the deposition will proceed as any normal deposition would proceed with other parties or counsel present at the site if they chose to be present.
5. The exception for nonparty deponents to attend by telephone requires a motion and court order supported by express findings.
6. The numerous issues unresolved by statute are to be resolved by stipulation, by court order or by California Rule of Court. All issues have not and cannot be resolved by statute or rules. The time to resolve issues is early in the litigation, before the depositions, and before a dispute develops. Procedural issues can and should always be resolved by stipulation if possible and formalized in a stipulated court order. C.C.P.§2021. See GUIDELINES.

Pursuant to the requirement of CCP§2025(h)(3), the California Judicial Council adopted Rule 333, effective January, 2003. Subject to court order per (e), Rule 333 provides for notices, expressly authorizes videoconferencing, provides for cost allocation, specifies responsibility for making arrangements, expressly provides that any party has a right to appear in person at the depositions, and provides that the deposition be conducted as if persons were physically present. To the extent the new rule adds specific notice requirements as a precondition to the right to attend granted in the statute it, arguably, may be invalid as being inconsistent with that right. Other issues are not addressed by the new rule and will have to be handled by court order or stipulation.

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LEGAL AUTHORITY

GENERAL APPROACHES

Jurisdictions have adopted one or more different bases for authorizing depositions by remoste electronic means

Vary procedures by stipulation of all parties

See California Code of Civil Procedure §2021

Vary procedures by court order

In the absence of express authorization by statute or rule, courts have taken the common sence approach of approving such procedures

Patton v. May Dept.Stores (Mo.1988), 762 S.W.2d 38
Wagner v. Casteel (Ariz. 1983), 136 Ariz. 29, 663 P.2d 1020
City of Kotzebue v. McLean (Alas.1985), 702 P.2d 1309

Express authorization by statute or rule

Common alternative authority includes

telephone
"remote electronic means"

CALIFORNIA

Code of Civil Procedure §2021, written stipulations by parties
Code of Civil Procedure §2017(e) court order modification of procedures to obtain cost effective discovery

Code of Civil Procedure §2025(h)(3) deposition by telephone or remote electronic means

(3) A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. The court may expressly provide that a nonparty deponent may appear at his or her deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer. The procedures to implement this section shall be established by court order in the specific action proceeding or by the California Rules of Court.

California Rule of Court, Rule 333

Notice requirements
Who makes arrangements
Allocation of expenses
Deponent must be physically present
Party may be physically present
Trial court orders to resolve other issues

FEDERAL RULES

Federal Rule 30(b)(7)

The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means.

STATE JURISDICTIONS

See 1997 survey for the National Court Technology Conference, National Center for State Courts

19 states permitted depositions "by any means"
36 permitted telephonic depositions
33 permitted videotaping

REMOTE ELECTRONIC MEANS

The electronic means and media that might be employed to attend depositions is not limited or defined and allows for the development of technology that may be used in the future. Lawyers will of course only want to use proven technology that is cost effective and satisfies the needs of them and their clients. Today, there are several alternatives, each with its own multiple variations, available for consideration by lawyers planning to take or attend depositions by remote electronic means. The basic alternative technologies are telephone, webconferencing or voice and video over the Internet to the PC, and videoconferencing. The technologies are constantly improving and the costs decreasing. Service providers can assist in determining the best means to be used and can assist in the selection, installation and technical support of equipment. Public rooms are available for remote depositions for those who do not install their own equipment or who need remote locations. Lawyers may want to employ multiple technologies, may want to consult with service providers and technology consultants, or may want to rely on services provided by court reporters.

Supplemental Tool.
Attending by remote electronic means may be a supplement to personal attendance by one lawyer. While one lawyer attends on site, other lawyers, experts, or witnesses can participate by remote attendance at all or part of the deposition or may attend some but not all depositions scheduled in a remote location. In addition, while attending remotely such persons are available to ask or answer questions or otherwise assist the lawyer who is on site. Under such circumstances the quality of the video may be of lesser importance.

Video Recording.
One technology long available for depositions should be considered in evaluating alternatives. Videotaping of depositions is authorized and governed by California Code of Civil Procedure §2025(l). If contemporaneous evaluation of the witness at the time the deposition is taken is not essential, a telephonic appearance or webcasting may suffice at that time and still provide for quality visual evaluation later if the deposition is videorecorded . If videorecording is considered of value in itself, it might be considered as part of the cost analysis in that a video deposition can be recorded as part of the process and often at an incremental cost must less than the cost of video recording alone.

Telephone.
The most familiar and least expensive technology can suffice and may be more or less advantageous depending on circumstances: the witness may be neutral and objective or of minor significance; all parties may be on a par if all are attending by telephone; interests may be protected by co-counsel or co-parties who attend in person; videotaping may satisfy needs for evaluation of the witness at a subsequent time when the contemporaneous evaluation is not critical; travel time and expense considerations may dominate; there may be no alternative due to prior commitments or last minute emerencies.

Even when appearing telephonically there are technical concerns and the party appearing may be responsible for all arrangements under CRC Rule 333. Parties also must consider the quality of the speaker phone, the placement of microphones, identification of speakers, and, for multiple appearances, teleconferencing arrangements. Document exchanges present issues not resolved by any rules. Hopefully, court reporters will handle all arrangements for reasonable fees and provide the technical expertise for this and other technologies.

Webconference.
Services providing online meetings over the Internet using a camera and personal computer have been available for several years. They are most commonly used for online meetings and collaboration on documents. They offer the advantages of cost savings and the convenience of using a PC and the Internet without special equipment, special wiring or travel to a special room or out of office location. Depositions using this media can include real time transcripts, audio, video, document sharing and private chat rooms for parties on the same side. I-Dep, has focused on the legal deposition market and its service includes an instant objection feature. Viack has focused on the legal market for online meetings and document collaboration. This technology has the advantage of convenience, minimal capital investment and lower costs but the disadvantages of delayed and "jerky" video. It can be combined with high quality video recording to be used later. Though the video is less desirable than videoconferencing, it offers obvious advantages over the telephone which has no visual aspect. It may be of particular advantage as a supplement to attendance by another lawyer.

Videoconferencing.
Courts around the country have used this technology for many years but most commonly in the criminal area where transportation and security costs have made this alternative particularly attractive. It offers better quality video at a higher price. The need for special wiring and expensive equipment may have deterred use in the past. Today, the wiring needs are diminished by use of T-1 and even DSL service. In addition, many firms use vidoeconferencing for communication and continuing education; so, the use for depositions is an incremental cost to those firms. Finally, several service providers offer public rooms for those without the equipment or technical expertise. Resellers and service providers can tailor equipment, support and services to the needs of the user.

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