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==REMOTE DEPOSITIONS==
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Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Even after the executive order is lifted, maintaining social distancing will be critical to avoid contracting COVID-19. The workers' compensation community is not excused from this protection. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting it remotely.
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Code of Civil Procedure § 2025.310(a) states, "A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means." A party is not required to obtain the consent of the other party or the court before scheduling a deposition by telephone or other electronic means. California Rules of Court, rule 3.1010(a) states, "Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:
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==Remote Depositions==
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Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order in March 2020 requiring all individuals living in California to stay home or at their place of residence except for what are deemed to be essential activities. Even after the executive order was lifted in January 2021, maintaining social distancing was deemed critical to avoid contracting COVID-19. The workers' compensation community is not excused from this protection. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting it remotely.
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Previously, under former Code of Civil Procedure § 2025.310, the availability of remote depositions (that is, depositions in which the deponent is at a different location from the deposition officer) was extremely limited. The court’s express permission was required to conduct a remote deposition with someone not party to the case, and a deposition could not be conducted remotely with a party to the case under any circumstances.
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On April 6, 2020, however, the Judicial Council of California adopted emergency rules in response to the COVID-19 pandemic.<ref>The emergency rules related to COVID-19 are available at https://www.courts.ca.gov/documents/appendix-i.pdf.</ref> Emergency rule 11 stated, "Notwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and [California Rules of Court] rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition."
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Code of Civil Procedure § 2025.310 was amended effective Sept. 18, 2020 to make permanent emergency measures adopted by the Judicial Council to ensure civil litigation can move forward during the COVID-19 pandemic.
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Code of Civil Procedure § 2025.310(a) states, "At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition." CCP 2025.310(b) adds, "Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent."
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In order to take a deposition remotely, notice is still required. California Rules of Court, rule 3.1010(a) states, "Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:
  
 
<ol>
 
<ol>
 
<li>Notice is served with the notice of deposition or the subpoena;</li>
 
<li>Notice is served with the notice of deposition or the subpoena;</li>
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<li>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; and</li>
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<li>That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. But each party so appearing must pay all expenses incurred by it or properly allocated to it; </li>
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<li>Any party may be personally present at the deposition without giving prior notice."</li>
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<li>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."</li>
 
</ol>
 
</ol>
  
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So, in order to take a deposition by telephone, videoconference or other remote electronic means, a party is required only to serve notice that it intends to do so, and to arrange for any other party to participate in an equivalent manner. Rule 3.1010(b) allows any party to appear by telephone, videoconference or other remote electronic means if it serves written notice of such appearance by personal delivery, e-mail or fax at least three court days before the deposition, and makes all arrangements and pays all expenses incurred for the appearance.
 
  
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Labor Code § 5710 provides that depositions in workers' compensation proceedings are "to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ...." The WCAB has recognized that remote depositions are allowed in workers' compensation proceedings.<ref>''Simmons v. Just Wingin' It, Inc.'' (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.</ref>
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So, in order to take a deposition by telephone, videoconference, or other remote electronic means, a party is required only to serve notice that it intends to do so, and to arrange for any other party to participate in an equivalent manner.  
  
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Note that although the attorneys and other individuals, such as an employer representative, may appear at a deposition remotely, a party deponent may not. Code of Civil Procedure § 2025.310(a) states "any person ''other than the deponent'' may attend" a deposition remotely (emphasis added). Moreover, § 2025.310(b) states, "A party deponent shall appear at the deposition in person and be in the presence of the deposition officer."
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California Rules of Court rule 3.1010(b) allows any party, other than the deponent or attorney of record, to appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:
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<ol>
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<li>Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition.</li>
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<li>The appearing party makes all arrangements and pays all expenses incurred for the appearance.</li>
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</ol>
  
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Similarly, California Rules of Court, rule 3.1010(c) states, "A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer." Rule 3.1010(d), in contrast, states, "A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party." So, although the rules require party deponents (that is, injured workers or employers) to appear at a deposition in person with a court reporter, a nonparty deponent (for example, a doctor or co-worker) may appear remotely with a court order.
 
  
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Neither the Code of Civil Procedure nor the California Rules of Court discusses whether the parties may waive the requirement that a party deponent appear at the deposition in person. Because the spread of COVID-19 is deemed to be an emergency, there seems to be no reason why the parties may not also agree to allow a party deponent to testify remotely.  
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A deponent must appear as required by statute or as agreed to by the parties and deponent. Also, the court may make such orders as it deems appropriate.
  
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Per California Rules of Court, rule 3.1010(e), "On motion by any person, the court in a specific action may make such other orders as it deems appropriate." So if the parties waive the requirement for a deponent to appear in person, it probably will be supported by the WCAB. Any agreement should be confirmed in writing in advance to avoid any misunderstandings.
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Labor Code § 5710 directs that depositions in workers' compensation proceedings are "to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ...." The Workers' Compensation Appeals Board has recognized that remote depositions are allowed in workers' compensation proceedings.<ref>''Simmons v. Just Wingin' It, Inc.'' (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.</ref>
  
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Obviously, there are many good reasons for attorneys to be physically present during depositions –– they can observe the deponent's demeanor, or present him or her with physical evidence, such as a medical report, to challenge the deponent's deposition. But, at present, these considerations should yield to public safety. Remote depositions must be considered for the foreseeable future in order to protect the injured worker, the attorneys and the community as a whole. If attorneys need to be present for a deposition, social distancing guidelines should be followed.  
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For a full discussion of depositions in the California workers compensation system, see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/14.12 Section 14.12 Depositions].
  
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==See Also==
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* [[Provision of Benefits and Investigation Without a Claim Form]]
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* [[When Should a Claim Form Be Provided?]]
  
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==References==
  
 
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[[Category:Commentary]]
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! [[Court Appearances|< Court Appearances]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[Remote Medical Treatment Examinations and Medical-Legal Appointments| Remote Medical Treatment Examinations and Medical-Legal Appointments >]]
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Latest revision as of 22:08, 15 April 2022

< Previous Table of Contents Next >

Remote Depositions

Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order in March 2020 requiring all individuals living in California to stay home or at their place of residence except for what are deemed to be essential activities. Even after the executive order was lifted in January 2021, maintaining social distancing was deemed critical to avoid contracting COVID-19. The workers' compensation community is not excused from this protection. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting it remotely.

Previously, under former Code of Civil Procedure § 2025.310, the availability of remote depositions (that is, depositions in which the deponent is at a different location from the deposition officer) was extremely limited. The court’s express permission was required to conduct a remote deposition with someone not party to the case, and a deposition could not be conducted remotely with a party to the case under any circumstances.

On April 6, 2020, however, the Judicial Council of California adopted emergency rules in response to the COVID-19 pandemic.[1] Emergency rule 11 stated, "Notwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and [California Rules of Court] rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition."

Code of Civil Procedure § 2025.310 was amended effective Sept. 18, 2020 to make permanent emergency measures adopted by the Judicial Council to ensure civil litigation can move forward during the COVID-19 pandemic.

Code of Civil Procedure § 2025.310(a) states, "At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition." CCP 2025.310(b) adds, "Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent."

In order to take a deposition remotely, notice is still required. California Rules of Court, rule 3.1010(a) states, "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. But 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."


So, in order to take a deposition by telephone, videoconference, or other remote electronic means, a party is required only to serve notice that it intends to do so, and to arrange for any other party to participate in an equivalent manner.

California Rules of Court rule 3.1010(b) allows any party, other than the deponent or attorney of record, to 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 appearing party makes all arrangements and pays all expenses incurred for the appearance.


A deponent must appear as required by statute or as agreed to by the parties and deponent. Also, the court may make such orders as it deems appropriate.

Labor Code § 5710 directs that depositions in workers' compensation proceedings are "to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ...." The Workers' Compensation Appeals Board has recognized that remote depositions are allowed in workers' compensation proceedings.[2]

For a full discussion of depositions in the California workers compensation system, see "Sullivan on Comp" Section 14.12 Depositions.

See Also

References

  1. ↑ The emergency rules related to COVID-19 are available at https://www.courts.ca.gov/documents/appendix-i.pdf.
  2. ↑ Simmons v. Just Wingin' It, Inc. (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.


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