The Massachusetts Supreme Judicial Court recently released for public comment a proposal to create a baseline set of ground rules for the conduct of remote depositions in that state. The proposed rule revisions would set out new deposition notice requirements, technical standards for deposition providers, as well as rules on permissible camera positioning, limits on remote participants, and protections against outside influences on the witness.

The Massachusetts proposal appears to be the first in the country to regulate the conduct of remote depositions by court rule. Other courts have revised their rules to accommodate (and encourage) remote depositions, but none have proposed detailed rules for how they should be conducted.

The drafting committee note accompanying the proposed rule change indicates that the committee is particularly interested in soliciting input on its decision to allow the party noticing the deposition to decide whether the deposition will be conducted remotely or in person. As the rules change proposal now stands, the initial deposition format choice can be changed by the trial court if the party opposing the format demonstrates good cause for the change.

Per the drafting committee:

The rule allows the party who notices a deposition to elect to conduct a video-conferencing deposition by providing appropriate notice and specified information to all parties and to the deponent. Any other party or the deponent who has received a notice of a video-conferencing deposition then has the right to move in court for an order requiring the deposition to be taken in person or by a combination of in-person or video-conferencing methods.

A purely “remote” deposition is a deposition conducted through videoconferencing technology in which the participants are all in different physical locations. The “hybrid deposition,” a more common scenario, is one in which some participants are present in the same physical location while others are participating via videoconferencing.

Federal courts and every state court in the country permit both remote and hybrid depositions; however, the details of how those depositions are conducted have for the most part been left to the litigants to sort out. In recent years, lawyers and bar groups published remote deposition protocols, ethics opinions, and best practices guides to shore up procedural protections during remote depositions.

“The proposed rule revisions would set out new deposition notice requirements, technical standards for deposition providers, as well as rules on permissible camera positioning, limits on remote participants, and protections against outside influences on the witness.”

This state of affairs may soon change in Massachusetts, where the state high court’s proposal to amend Massachusetts Rule of Civil Procedure 30 (Depositions Upon Oral Examination) would give litigators a set of ground rules for how remote depositions must be conducted in the Bay State. For the most part, however, the proposed rules mirror established best practices and respond to concerns many lawyers have expressed regarding the danger of unknown outside influences during remote proceedings.

Baseline Fairness Protections Proposed

The proposed new additions to Rule 30 create a laundry list of notice requirements, technical standards, and party protections that every remote deposition conducted in Massachusetts would have to satisfy. Among the most significant changes to current practice are:

• No need to request permission for remote. Any party may notice a deposition to be conducted remotely without leave of court; the trial court may order that the deposition be taken in-person or in some combination of video-conferencing and in-person, upon a showing of good cause.
• Notice must contain connection information. The remote deposition notice must specify all of the information needed to participate in the deposition.
• Court reporter must be able to administer remote oaths. The remote deposition must be taken before an officer or person authorized to administer oaths and take testimony without being in the presence of the witness.
• Communication always “on.” Sound and video feeds for the witness, counsel for the parties, self-represented parties, and the court reporter must remain on while the remote deposition is on the record.
• Limited audience. Only persons who would be entitled to attend a live deposition in the case may observe the remote deposition; persons attending the deposition must be identified for the record.
• Technology must show attendees in real time. The technology platform used for the deposition must be able to show a real-time list of those persons attending the deposition.
• No hidden outside influence. If any person enters the room where the witness is located during the remote deposition, the witness or the lawyer in the room shall immediately notify the new remote deposition participants.
• Camera focus on the witness. The court reporter or videographer must video-record only the witness, except that split screen may be used as necessary to record an exhibit while the witness is being questioned concerning the exhibit.
• No “home movies.” No person other than the court reporter and videographer may record the deposition by video or audio means.

Finally, as is the case with most matters pertaining to pretrial discovery, proposed Rule 30 would permit litigators to modify its default remote deposition ground rules through stipulations.

In 2022, Florida revised its court rules by prescribing technology disclosures that must be contained in the remote deposition notice. And Washington state and Minnesota courts revised their court rules in ways that encourage remote depositions – and require lawyers to look professional during depositions – but leave to litigators the details of how remote depositions will be conducted.

Interested parties have until Dec. 29, 2023, to submit comments on the proposed Massachusetts rule changes.