By Amy J. Galatis, Litigator at McCarthy, Bouley, Barry & Morgan – We have now passed the one-year mark under quarantine due to the COVID-19 pandemic. Litigators have largely moved to remote depositions and learned to weather both the uncertainty of technology and the question of how to best represent clients in this scenario.
Meanwhile, several important changes have taken place with respect to technology, SJC orders and court decisions.
The technological options are catching up with the specific needs of litigation practice. Platforms such as Zoom, Cisco Webex and Google Meet have all expanded and improved.
The need for increased security has led to the ability of a host to set passwords, to admit parties individually to virtual meetings, and to eject unwanted parties.
Breakout rooms are now an option, allowing parties to have private conversations with counsel without the need to leave the virtual meeting completely and meet on another platform.
In addition, there are separate and distinct document-sharing programs that can safely and securely share, organize and display voluminous documents for use during depositions.
However, regardless of which programs are used, all parties should “test drive” their respective devices with the court reporter in advance to iron out any issues with Wi-Fi connections, connectivity or compatibility with programs.
A year ago, the Supreme Judicial Court issued an order concerning email service in cases under Rule 5(b) of the Rules of Civil Procedure. Under the March 30, 2020, order, a notice of deposition can be served via electronic mail to an attorney of record if that email address is known.
However, the order does not apply to pro se parties, incarcerated parties or non-party witnesses who are not otherwise represented by counsel. Therefore, while many prospective deponents can be properly served via email, care must be taken to determine alternate methods of service if necessary.
In addition, the order makes it the attorneys’ responsibility to check spam, junk mail or similar folders within their email accounts for messages that may have been diverted from their inbox. Pleading “not in my inbox” will not be a sufficient defense for either discovering a pleading or notice late or past a deadline.
Effective May 26, 2020, the SJC updated its first order with regard to taking remote depositions. The more recent order makes it clear that any deposition may be conducted remotely, and neither a stipulation nor a court order is required to do so.
Remote depositions are considered to be taken in the county and place where the deponent is located. Any person who views or listens to a remote deposition at any time during the deposition “shall be” identified for the record. Parties involved are to confer and cooperate to the fullest extent possible, including with regard to the exchange of exhibits.
Several issues are raised with the order. While a stipulation is no longer necessary, it may be helpful in situations that are not covered, such as when the deponent is out of state, or to set a definitive deadline for the exchange of exhibits.
In addition, while the May 2020 order requires that listeners or viewers identify themselves, it does not address who may be present during a deposition. That may also be covered in a stipulation between the parties to restrict attendance to the parties and their attorneys if there is a concern, or to require that all parties keep their video function on for the entirety of the deposition.
Several cases pertaining to practice during quarantine and remote depositions in particular have been published, and are starting to trickle upward to the Superior and appellate courts.
In particular, Dumouchel v. Love (Middlesex Superior Court 2081CV01710, published Dec. 18, 2020) tackled the question of whether a party can compel another party to appear in person for a deposition when counsel objected and would produce the deponent for a remote deposition only.
Justice Patrick Haggan reasoned that one party’s wish to proceed in person was not sufficient to require that it be so without a further showing of specific necessity.
Further, no consensus between the parties was required to hold a deposition remotely as long as the SJC’s order is in effect. Therefore, there was no requirement to seek and obtain a protective order to proceed with a remote deposition.
While the Superior Court decision is advisory only, the SJC has noted the danger with in-person proceedings during the pandemic in both its promulgated orders as well as the cases Foster v. Commissioner of Correction, 484 Mass. 698 (2020), and Committee for Public Counsel Services v. Chief Justice of the Trial Court, 484 Mass. 431 (2020).
Remote depositions will be the normal for some months to come. The technology and programming will continue to improve, and access to both Wi-Fi and devices to utilize it will become more widely accessible.
Once in-person depositions begin to happen with regularity again, it should be anticipated that future rule changes will allow for the sanctioned virtual taking of depositions in cases in which the deponents are located outside of the 50-mile rule, or perhaps on a specific showing on a case-by-case basis.
In any event, the use of remote depositions is unlikely to disappear completely even when the COVID-19 virus does.