North Carolina Paves the Way for Remote Depositions: Some Practical Considerations[UPDATED August 24, 2020] – Alerts
[UPDATED] Buried within North Carolina’s omnibus pandemic aid legislation signed into law on May 4, 2020 is a new statute that temporarily authorizes notaries to administer oaths remotely. This paves the way for conducting fully remote depositions in North Carolina – at least until this remote oath authorization expires on March 1, 2021.
This alert addresses some of the legal, logistical and practical issues attorneys and clients are likely to encounter when handling remote depositions in North Carolina.
Legal Considerations: Oath and Rules
In-person oath requirement temporarily relaxed. North Carolina’s omnibus pandemic relief legislation includes a new law ― N.C. Gen. Stat. §10B-25 (Emergency Video Notarization) ― that temporarily allows oaths to be administered using videoconference technology. The basic requirements are:
- The video must be in real time and cannot be prerecorded.
- It must allow two-way simultaneous communication with sound.
- It must be of sufficient quality to allow an unobstructed view of the face of each participant.
This new law also has a built-in sunset provision. Originally it was set to expire on Aug. 1, 2020, but this deadline has since been extended until March 1, 2021.
Without this new law, administering oaths by video (or audio) for witnesses in North Carolina was problematic. Parties could try to address this issue by stipulation (discussed below), since there is some case authority suggesting oaths may be administered while in the “vocal and aural presence” of the witness. See Rodriguez-Carias v. Nelson's Auto Salvage & Towing Serv., 189 N.C. App. 404, 659 S.E.2d 97 (2008) (unpublished), aff'd, 363 N.C. 365, 677 S.E.2d 453 (2009). However, N.C. Gen. Stat. §10B-60(c) prohibits notaries from administering an oath of someone who does not appear in person, so notaries are understandably reluctant put someone under oath by video. For now at least, parties do not have to grapple with this, as oaths using video conference technology are clearly permitted until Aug. 1.
If North Carolina lawmakers allow Section 10B-25 to expire before normalcy resumes, parties can still conduct remote depositions, and they can address oaths and admissibility issues by stipulation. The oath is an assurance of truthfulness and is a prerequisite to admissibility under N.C.R.Evid. 603 (requiring witnesses declare the truthfulness of testimony by oath or affirmation). The parties’ stipulation can waive the traditional in-person oath for the deposition, and agree that witnesses may instead affirm on the record that the testimony provided will be the truth, the whole truth, and nothing but the truth. Parties can further stipulate that this affirmation meets the admissibility requirements under the applicable rules of evidence and agree to waive evidentiary challenges based on the lack of a formal oath under N.C. R. Evid. 603. After the deposition, the witness can further attest and affirm to the truthfulness of the written transcript. None of these are ideal solutions, but under the circumstances, we would expect courts in North Carolina to be more inclined to receive testimony that may have been taken without a traditional oath or affirmation, particularly where the testimony is affirmed and the parties have a stipulation addressing this issue.
The rules and the stipulation. Rules 28, 29 and 30 of the North Carolina Rules of Civil Procedure govern depositions and provide the framework for the parties’ notice and the stipulation for a remote deposition. Rule 30 allows for telephonic or remote depositions (Rule 30(b)(7)) and it specifies what must be in the notice. But it is little-used Rule 29 that gives parties the flexibility needed to adjust to a fully remote deposition, and again, a written stipulation is required.
Rule 30 governs the notice. The notice is functional, providing other parties an opportunity to attend, observe and question the witness. But other than allowing parties to “stipulate” to a telephone deposition (Rule 30(b)(7)), Rule 30 does not discuss what needs to be in a notice for a fully remote deposition. That’s where Rule 29 comes in.
Rule 29 allows parties “by written stipulation” to adjust what the notice must say, before whom a deposition may be taken and any other deposition procedure. Parties contemplating a fully remote deposition should enter a “written stipulation” covering these and other points.
For starters, a notice for a remote deposition should have all of the information that Rule 30 requires including the name of the deponent, date, time, location and method of recording. The notice should also include information on the means to participate remotely (e.g., call in number or link). The stipulation should include the details about remote participation by video or audio, exhibit use and exchange, any agreement on how the oath or affirmation will be administered or whether a traditional oath requirement will be waived. The stipulation can also address some of the logistical, technological and practical considerations, including those detailed below (e.g., what happens if the video fails).
Logistical Considerations: Set-up, Tech and Test, Test, Test
The noticing party is typically responsible for arranging for the court reporting service and assuring that the witness has the proper equipment to participate. The main ingredients to an effective remote video deposition are:
- A multi-functional common video feed (many court reporting services offer this)
- A repository for storing and displaying electronic exhibits
- Ideally a streaming real-time transcript feed from the court reporter.
Critically, all participants need their own devices and a reliable, robust internet connection. Many court reporting services are able to provide the witness a device and even internet connectivity.
Before the deposition, all participants should sign up with the court reporting service, understand how the system works and, if possible, test the system. On the day of the deposition, parties should agree to sign on early. These details can be included in the stipulation.
As noted, technology and connectivity needs to be vetted before the deposition date. This may involve a trial run with all participants, and certainly by the party taking the deposition. If you plan to use exhibits, you may need to upload them to the court reporter’s site before the deposition, and you certainly will need to know how to pull them up on command. Again, court reporting services can help with this.
Finally, since computer or connectivity issues are ever-present, examiners should also plan for problems. Although not ideal, shipping (sealed) hard copies to witnesses — with a return envelope — is an option. Parties should also contemplate (and stipulate) to more rudimentary backup procedures via telephone, or everyone can agree beforehand to continue the deposition should the tech fail. Again, for remote depositions, thoughtful preparation and testing is a must.
The witness needs to be able to prove their identity. Witnesses should have picture identification ready. If represented, their counsel should also confirm their identity with a statement on the record.
Location and physical presence:
Obvious, but easily overlooked, witnesses should confirm their location — at least state and county — as well as the presence of anyone else in the room, on the record.
Exhibits: practice makes proficient.
Court reporters have the tech to facilitate use of exhibits in remote depositions, but examiners need to practice. Well before the deposition, potential exhibits need to be identified and (depending on the technology) uploaded with the court reporting service. And the witness needs to be savvy enough to use a computer to view them.
In many ways, electronic exhibit use can be more effective than paper. Witnesses and examiners can easily point to, highlight and mark up exhibits. And those markings can be recorded in real time, to be replayed for a jury simultaneously with testimony. A split-screened video deposition showing a witness’s reaction as an exhibit is marked up can be a very powerful presentation tool. But again, preparation, familiarity with the tech and practice are essential.
Video and audio:
If your witness is being deposed, you need to survey the room, background and lighting. The same is true for any examining attorneys who may be on video. Also, computer microphones and room acoustics can be less than ideal for both for transcription and playback. Parties should consider providing the witness and/or examiners with high-quality microphones.
Although the participants appear on video during the deposition, the deposition will not result in a video transcript unless the attorney arranges for this beforehand. It seems archaic, but an official videographer needs to create such a transcript, and these logistics need to be worked out in advance.
Finally, what if parties refuse to stipulate?
Since a stipulation is required to conduct a remote deposition and to address many of these issues, it will be interesting to see how parties and courts deal with parties, witnesses or their counsel who are uncomfortable, unwilling or unable to participate in remote depositions. Notably, Rule 30(b)(7) allows telephone deposition by stipulation or order. Motions practice, as a last resort, may be required to compel remote depositions.
The days of driving around with binders and boxes to depose witnesses may be numbered. With social distancing requirements and travel concerns likely to continue for some months, our new normal will include fully remote depositions. They are allowed by our Rules, and court reporters have ramped up service offerings. Practitioners and clients need to think through these details, become proficient with the technology, and above all cooperate.