New court rules went into effect in Massachusetts last month that authorize remote depositions whenever the party noticing the deposition elects that format. A prior proposal to make in-person depositions the default option was abandoned in response to overwhelming litigator disapproval.
Revised Rule 30(b)(4) of the Massachusetts Rules of Civil Procedure adds new language creating:
- minimum notice requirements for remote depositions
- baseline technology capabilities for remote deposition platform providers
- ground rules for the conduct of remote depositions
Under the new rule, approved Dec. 24, 2024 by the Massachusetts Supreme Judicial Court, notices calling for a remote deposition to be conducted via video-conferencing (e.g., Zoom or a purpose-built deposition technology platform) must identify the video-conferencing platform and supply all information necessary to participate in the deposition.
Massachusetts litigators are free to agree to remote deposition arrangements that differ – or augment – the specifications of Rule 30, provided they place those agreements on the record prior to the deposition or somehow reduce those agreements to writing. In fact, Rule 30(b)(4)(D) anticipates that lawyers for each side will meet and confer for the purpose of resolving all issues related to remote depositions, “including the video-conferencing platform that will be used and the handling of exhibits during the remote deposition.
Additionally, the deposition services provider selected must have the ability to provide, at a minimum, the following services:
- a real-time list of those persons attending the deposition
- a separate login for each person attending the deposition
- a means of showing on camera the deposition witness and each other participant separately
- a means of showing the deposition witness a video feed of the questioning attorney
Audio and video feeds for the deposition witness, for all participating attorneys, and for the court reporter “must remain on while the video-conferencing deposition is on the record,” according to the revised rule.
Rule 30(b)(4) also obliges remote participants to mute their sound feed when not speaking.
Everyone Present With Witness Must Be Visible
In order to protect the integrity of remote depositions, Rule 30(b)(4) contains language addressing the problem of uninvited guests at the deposition. The rule now provides:
If any person enters the room where the deponent is located during the deposition, the deponent or counsel in the room shall immediately notify the video-conferencing participants and the person who entered the room must either separately log in to the video-conferencing deposition or be otherwise visible to all attendees on the video feed.
The intent of this provision appears to be that, once apprised of the intrusion, the attorneys participating in the deposition will be able to work out an acceptable remedy. Prior to the most recent revisions, Rule 30 already contained provisions that prohibited a lawyer from requesting – absent the assent of all other parties – that the deposition recording be interrupted or halted for any reason.
The new rule prohibits anyone other than the court reporter and designated videographer from recording the deposition.
Massachusetts litigators are free to agree to remote deposition arrangements that differ – or augment – the specifications of Rule 30, provided they place those agreements on the record prior to the deposition or somehow reduce those agreements to writing. In fact, Rule 30(b)(4)(D) anticipates that lawyers for each side will meet and confer for the purpose of resolving all issues related to remote depositions, “including the video-conferencing platform that will be used and the handling of exhibits during the remote deposition.”
Embracing Lessons Learned During the Pandemic
Drafting committee notes accompanying the rule change pointed out that, in response to a 2022 proposal to make in-person depositions the default format, the weight of attorney comments on that suggestion favored returning to the COVID-19 pandemic era rule: Remote depositions should be allowed as a matter of right. Over 80% of attorneys responding opposed making in-person depositions the default format.
The drafting committee’s subsequent proposed revision called for a “noticer’s choice” approach. The party noticing the deposition has the right to decide – subject, of course, to a motion challenging the choice – whether the deposition will be taken remotely or in person. Following a second round of public comment, the drafting committee forwarded the “noticer’s choice” proposal to the state high court for approval.
So far, a handful of other states have revised their rules to encourage the use of remote depositions. Late last year, the Washington Supreme Court approved a “noticer’s choice” rule and a prescriptive set of requirements for the conduct of remote depositions. In California, the Judicial Council eliminated the former requirement in California Rule of Court 3.1010 that deposition witnesses appear in the physical presence of the court reporter, a change intended to remove that obstacle to remote proceedings. Elsewhere, the vast majority of states follow some version of Federal Rule of Civil Procedure 30 – a rule that permits remote depositions but does not explicitly encourage parties to select one format over another.
