Over the past few months, the legal industry has steadily adapted to remote working. The U.S. Supreme Court even took oral arguments telephonically for the first time in its history! Many states now have standing orders that authorize remote depositions, and we’ve accepted them as our’ new normal’.
Videoconferencing is an excellent solution because it allows you to proceed with your scheduled depositions while simultaneously eliminating the health risks of contracting COVID-19. This means that pending cases can remain on track. Better yet, remote depositions don’t always require significant changes to your routine. To help you get started, we’re going to explore the process of swearing in a remote deposition witness.
Method of Recording
To comply with noticing obligations, court reporters must state the method of recording for the transcript. You should always refer to your local court to determine the appropriate language to comply with court requirements. Below, we’ve provided some sample phrasing that will incorporate virtual conferencing into your deposition. This text is offered as a guideline only and does not constitute legal advice.
TO DEFENDANT {NAME} AND TO ITS ATTORNEYS OF RECORD, PLEASE TAKE NOTICE that pursuant to C.C.P. section 2025.210, Plaintiff {NAME} (“Plaintiff”), will by and through his counsel of record, take the deposition of the person(s) most knowledgeable of Defendant {NAME} (“Defendant”) in the above action at the office of {LOCATION} on {DATE AND TIME}. The deposition shall be taken stenographically and shall be conducted under the supervision of an officer who is authorized to administer an oath, and may be taken remotely via videoconference and remotely recorded.
Reporter Read-On Language
Court reporters have immense responsibility as custodians of the record and as officers administering binding oaths. At the discretion of the court reporter, your deposition might begin with a read-on statement designed to address the current global health crisis. This provides added clarity to the written record.
We’ve provided some examples of read-on statements below:
- “Before we proceed, I will ask counsel to agree on the record that under the current National Emergency pursuant to Section 319 of the Public Health Service Act, there is no objection to this deposition officer administering a binding oath to the witness remotely. Please state your agreement on the record.”
- “Before we proceed, I will ask counsel to agree on the record that under the current National Emergency pursuant to Section 319 of the Public Health Service Act, there is no objection to this deposition officer administering a binding oath to the witness by phone. Please state your agreement on the record.”
- “Before we proceed, I will ask counsel to agree on the record that under the current National Emergency pursuant to Section 319 of the Public Health Service Act, there is no objection to this deposition officer administering a binding oath to the witness by videoconference. Please state your agreement on the record.”
Swearing in the Witness
In addition to the standard questions establishing witness name and address, it may also be helpful to reiterate that they are under oath. Their testimony in a remote deposition carries the same force of law as it would in a conference room. You can also clarify that the witness understands what will happen in the event of technical difficulties. If they are disconnected, will they be expected to dial back, or will someone reach out to them? In the case of technical problems, will time spent resolving them be counted towards the federal rules’ ceiling which limit a deposition to seven hours? By making this clear up front, you’ll reduce the risk of obtaining an incomplete testimony due to connection problems.
Lastly, you may wish to include language that addresses witness behavior during the deposition. When your witness is at home, they might have the opportunity to consult notes or communications from their attorney. It will be useful to obtain a sworn statement at the beginning of the deposition that your witness has no other programs open on their computer and will not be consulting any notes, texts, emails, or chats while in session.
Final Thoughts
Thanks for reading! If you enjoyed this article, let us know in the comments and feel free to share it on social media. As you adapt to remote working, please feel free to reach out to us with any questions. Remember: we’re here for you from File Thru Trial™.
