The option to take depositions remotely began federally in 1993, but the practice was not the standard until the Covid 19 pandemic created the necessity in the spring of 2020. State courts also adopted the practice years ago, including Massachusetts. However, it was not until 2020 that remote depositions were widely allowed to occur without the authorization of a stipulation or court order. The practice of taking depositions itself has been completely switched around, instead of stipulating to a remote deposition, and weighing the factors of the testimony, cost savings, and convenience, parties now must weigh the good cause factors of requiring the deposition to occur in person, especially regarding plaintiffs and witnesses who may have high-risk health issues.
The Massachusetts Supreme Judicial Court released an order on May 26, 2020, and again on October 23, 2020 that allows for depositions to occur in civil cases remotely, without the requirement of in-person presence. While this practice has created a flexibility, there are some downsides to its practical application in civil litigation.
Allowing for the taking of remote depositions without stipulation or order was an essential change during the early days of the Covid 19 pandemic, and it remains essential today. Conducting depositions remotely is cost-effective, efficient, and allows for more widespread collaborative litigation. Because attorneys do not have to take the time and expenses to travel to depositions, clients save money. The time saved can be used for preparation or other tasks, making it much more efficient. In complex civil litigation cases where co-counsel or corporate counsel resides in other states, the availability of remote depositions allows for collaboration. This is also true of attorneys that may be admitted to practice in multiple states. A document published by the United States Seventh Circuit Bar Association suggests that remote depositions are here to stay, because they are cheaper and more time efficient. However, it is further stressed that it is important to prepare for the unexpected when taking, defending, and attending remote depositions to ensure that the rights to fair examination are upheld.
The order published by the Massachusetts Supreme Judicial Court in October of 2022, includes a paragraph referencing Mass. R. Civ. P. 29: “[u]nless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and (2) modify the procedures provided by these rules for other methods of discovery.” This was included to remind parties that even though these depositions are taken in a different manner than traditionally recognized, once stipulated, the deposition will be able to used in court proceedings like any other deposition. They are equally as valid and it seems the court is suggesting it will not stand for discovery motions devaluing such depositions.
This does not mean that they do not come with their own set of challenges. Some downsides to remote depositions relate not only to issues with technology and the ability to read body language of the deponent, but to the importance of maintaining the right to fair examination. The issue most commonly related to the frustration of the right of fair examination is witness coaching. It is a serious issue that has led to disciplinary charges against lawyers. During a remote deposition in 2021, plaintiff’s counsel overheard defense counsel providing an answer for his client. They were both wearing masks. Following the deposition, plaintiffs’ counsel reviewed the video recording and identified over 50 other instances where counsel provided his client with the answer. The Court granted the plaintiff’s motion for sanctions, disqualifying defendant’s counsel from further representing defendant, and allowing the plaintiff to play the recorded exchanges at trial. The seriousness of this issue was not lost on the court. The practice of remote decisions must be done so in a manner that upholds the fairness and professionalism the court requires.
Remote depositions have no doubt become a part of civil litigation and will most likely remain so in the future. The flexibility they allow has changed the practice of depositions for the better, but at the same time, they have created challenges. It is important for attorney to keep in mind what is iterated in the preamble to the Rules of Professional Conduct, “[a] lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service.” The technological future of the legal profession will change the landscape, but the duty to uphold the vital role of professionalism remains the same.
 “UPDATED ORDER REGARDING REMOTE DEPOSITIONS,” https://www.mass.gov/doc/sjc-updated-order-regarding-remote-depositions/download
 “Remote Depositions: Now & in the Long Term,” Microsoft PowerPoint – 675551_5.pptx (uscourts.gov)
“Attorney Sanctioned by the U.S. District Court of Massachusetts for Coaching Witness During Zoom Deposition” https://gravierhouse.com/2021/11/07/attorney-sanctioned-by-the-u-s-district-court-of-massachusetts-for-coaching-witness-during-zoom-deposition/