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Rule of Court Changes for Remote Depositions

By Katherine Gallo on September 6, 2022
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When the Covid-19 pandemic struck in early 2020, the legal profession scrambled as to how it could proceed without conducting business in person. Emergency Orders were issued by the Judicial Counsel and remote depositions became an everyday occurrence.

On January 1, 2022, California Rules of Court, Rule 3.1010 titled “Oral depositions by Phone, videoconference, or other remote electronic means” was modified to reflect the practicalities of what we learned the previous two years regarding remote depositions.

The new rule removed the requirement that deponents appear in the physical presence of the court reporter.

The second change is that if any party wishes to appear in person with the deponent they must give written notice five court days prior to the deposition. However, this notice requirement does not apply to the deponent’s attorney.

The third change was that any party may appear by telephone or video conference, so long as the requesting party pays the incremental costs; presumably this would prevent requiring deposing or defending counsel to incur the cost of a video setup if the deposition is otherwise being conducted in person

The final change was nonparty deponents are no longer to be treated differently than party deponents.  The law used to be that a nonparty had could only appear remotely if a court order was obtained

Rule 3.1010 now reads

(a) Taking depositions

Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Notice is served with the notice of deposition or the subpoena;

(2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it;

(3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.

(b) Appearing and participating in depositions

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;

(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

(c) Deponent’s appearance

A deponent must appear as required by statute or as agreed to by the parties and deponent.

(d) Court orders

On motion by any person, the court in a specific action may make such other orders as it deems appropriate.

Katherine Gallo

Katherine Gallo is an expert in complex discovery issues and is actively involved in Alternative Dispute Resolution (ADR) as a Discovery Referee, Mediator and Arbitrator in Northern California since 1994. Ms. Gallo is known for her extensive discovery seminars, in house discovery training…

Katherine Gallo is an expert in complex discovery issues and is actively involved in Alternative Dispute Resolution (ADR) as a Discovery Referee, Mediator and Arbitrator in Northern California since 1994. Ms. Gallo is known for her extensive discovery seminars, in house discovery training, and go-to blog on pre-trial discovery. Since 2010, she has authored a on discovery titled www.resolvingdiscoverydisputes.com.

Ms. Gallo has served as a court appointed or party selected private Discovery Referee or Special Master in over 250 hotly litigated matters concerning complex issues in business, construction defect (including lines and construction operations losses), insurance, employment (including wrongful termination, discrimination, harassment, and wage and hour claims), elder abuse, real property (including eminent domain, easements, and commissions), Lemon Law, personal injury and family law, many with multiple party litigants, including class actions. Well known to the judiciary, her court appointments in complex matters have come from the Superior Courts throughout the State.

Ms. Gallo has mediated or acted as a pro tem settlement judge in over 500 matters with a 90% settlement rate. Ms. Gallo takes pride in accomplishing the parties’ and the courts’ objectives with regard to impartiality, timeliness and accuracy.

Read more about Katherine GalloEmail
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  • Posted in:
    E-Discovery
  • Blog:
    Resolving Discovery Disputes
  • Organization:
    Katherine Gallo, Esq.
  • Article: View Original Source

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