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Rules Governing Remote Court Reporting

Updates on Rules and Regulations During the COVID-19 Crisis 


Background

As our nation practices social distancing to slow the spread of the COVID-19 virus, jurisdictions across the country have encouraged attorneys to conduct depositions remotely. While attorneys have been conducting remote depositions for decades, the court reporter was generally in the presence of the deponent. Now, during this incredibly challenging time, court reporters and attorneys are staying home …and the laws are changing to make that possible. 

In many cases, the courts have encouraged the use of remote depositions. For example, in the matter of Jeffrey v. Samsung Electronics, Case No. 15-cv-02087 (N.D.Ca. Apr 1, 2016), the court reasoned that “remote videoconference depositions can be an effective and efficient means of reducing costs.”  Lopez v. CIT Bank, N.A., No. 15-CV-00759 BLF (HRL), 2015 WL 10374104, at *2 (N.D. Cal. Dec. 18, 2015); Guillen v. Bank of Am. Corp., No. 10-CV-05825 EJD (PSG), 2011 WL 3939690, at *1 (N.D. Cal. Aug. 31, 2011); Federal Civil Procedure Before Trial (2015), The Rutter Group, 11:1470, 11-170. Likewise, courts have noted that leave to conduct depositions by telephone should be liberally granted and that a desire to save money constitutes good cause to depose out-of-state witnesses through remote means. Guillen, 2011 WL 3939690, at *1; Lopez, 2015 WL 10374104, at *2.  In fact, courts have even held that when the movant desires to conduct depositions remotely, the burden is on the opposing party to demonstrate how they would be unduly prejudiced. Guillen, 2011 WL 3939690, at *1.”

Now, as a result of the COVID-19 pandemic, courts have shown an even greater willingness to allow remote depositions and remote court reporters.

Set forth below is a list of the jurisdictions that have traditionally allowed remote court reporting; as well as states that have amended their rules to allow for it as a result of the COVID-19 crisis. (This list will be updated regularly with new rulings from other jurisdictions. Please notify us with any other updates that we have missed.)

Court systems across the country clearly recognize the danger of face-to-face interactions in the midst of a pandemic crisis, and are reacting immediately to allow parties to take depositions remotely. 

Please note: The information provided is not intended to be legal advice. Please consult with local rules for any updates or clarifications. 
 

Federal

Rule 30 of the Federal Rules of Civil Procedure already allowed parties to stipulate the use of a remote court reporter: "Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28."

Court proceedings have received similar flexibility from Rule 43: “For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.”

Alabama

On March 24, The Supreme Court of Alabama issued an Order allowing freelance court reporters “qualified to administer an oath in the State of Alabama to a witness in a deposition or court proceeding or trial [to] swear a witness remotely by audio-video communication technology if the deposition or court proceeding or trial is conducted by audio-video communication equipment that allows the court reporter and the witness simultaneously to view and orally communicate with each other, provided that the court reporter can positively identify the witness.”

 This Order also permits freelance court reporters to place out-of-state witnesses “under oath via audio-video communication equipment that allows the court reporter and the witness simultaneously to view and orally communicate with each other … provided that the court reporter can positively identify the witness”

Additionally, courts are ordered – in perpetuity - to “consider as evidence sworn statements or testimonies made out of court in a deposition or court proceeding or trial conducted by audio-video communication equipment that allows the court reporter and the witness simultaneously to view and orally communicate with each other.”

Lastly, the Order suspended any rules which conflicted with the proclamations contained in the March 24th Order. 

In concert with the Supreme Court’s Order, the Governor of Alabama issued a proclamation which decreed the following:

  • Notaries in Alabama who are licensed attorneys or operating under the supervision of licensed attorneys may notarize signatures through videoconferencing programs and confirm the signatures of witnesses who participate virtually through videoconferencing as though they were physically present at the signing.
  • Any person who witnesses a document through videoconference technology may be considered an "in person" witness, provided that the presence and identity of such witnesses are validated by the notary at the time of the signing by the same identifications required under current law.
Alaska No update at this time.
Arizona No update at this time.
Arkansas No update at this time.
California On March 27, Governor Newsom issued an executive order suspending CCP 2025.310.b. This section of the California Code of Civil Procedure required court reporters to be present for depositions of parties in a case. The code previously allowed court reporters to remotely depose only non-party witness. Now, court reporters are authorized to take all depositions remotely, parties and non-parties alike
Colorado

The state of Colorado issued an Executive Order on March 27, 2020 which temporarily suspended the requirement that the individual making a statement or executing a signature appear personally before a notarial officer, as set forth in C.R.S. § 24-21-506.

 This order will “[a]uthorize notarial officers to perform notarizations where a person appears before a notarial officer remotely, by real-time audio-video communication; and establish the standards and processes necessary to allow remote notarizations, including rules regarding authentication, verification of identity, and audio-video recording

Connecticut Governor Lamont allowed for the modification “of state laws and regulations to permit any notarial act that is required under Connecticut law to be performed using an electronic device or process that allows a notary public and a remotely located individual to communicate with each other under certain conditions, including recording and live presentation of identification.”
Delaware On March 22nd, The Supreme Court of Delaware issued an administrative Order suspending "any requirements for sworn declarations, verifications, certificates, statements, oaths, or affidavits in filings with The Supreme Court, the Court of Chancery, the Superior Court, the Family Court, the Court of Common Pleas, or the Justice of the Peace Court" under 10 Del. C § 3927, as limited by 10 Del. C. § 5354(b).
Florida

In Florida, another state that ordinarily requires the witness and court reporter to be in each other’s presence while the oath is administered, the state Supreme Court issued, on March 13, an emergency order (PDF) relaxing restrictions on videoconferencing until March 27.

The Florida Order suspends all rules of procedure or court opinions that limit or prohibit the use of electronic technologies for conducting proceedings remotely. Litigants are awaiting additional guidance from the court to determine if remote swearing is permitted.In the absence of direct guidance from the Florida Supreme Court, there are options for Florida lawyers and witnesses who wish to use remote deposition technology. An oath is satisfied through the read and sign process as long the witness attests in the errata form: “Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.”

Georgia No update at this time.
Hawaii No update at this time.
Idaho No update at this time.
Illinois The State of Illinois decreed that “[d]uring the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19, the requirement that a person must ‘appear before’ a Notary Public commissioned under the laws of Illinois pursuant to the llinois Notary Act, 5 ILCS 312/6-102, is satisfied if the Notary Public performs a remote notarization via two-way audiovideo communication technology, provided that the Notary Public commissioned in Illinois is physically within the State while performing the notarial act and the transaction follows the guidance posted by the Illinois Secretary of State on its website.”

On April 29th, the IL Supreme Court published an order to clarify these changes in to Rule 206(h). In addition, they added two new sections to state that any time spent “addressing necessary technology issues shall not count against the time limit for the deposition” and “No recording of a remote electronic means deposition shall be made other than the recording disclosed in the notice of deposition.
Indiana No update at this time.
Iowa

Iowa Governor Kim Reynolds issued a proclamation “temporarily suspend[ing] the personal appearance requirement in Iowa Code § 9B.6, but only to the extent that the notarial act complies with the requirements of section 6 of 2019 Iowa Acts chapter 44 (Senate File 475) and any additional guidance provided by the Iowa Secretary of State regarding approved communication technology.”

 Governor Reynolds also “temporarily suspend[ed] the regulatory provisions of Iowa Code §§ 144B.3, 633.279, and 633B.105, to the extent that they require the physical presence of a testator, settlor, principal, witness, or other person, if the person is present in a manner in which the witness or other person can see and hear the acts by electronic means, such as video conference, Skype, Facetime, Zoom, or other means, whether or not recorded."

Kansas No update at this time.
Kentucky No update at this time.
Louisiana No update at this time.
Maine On March 25th , the State of Maine Supreme Judicial Court issued an emergency Order stating that an “officer or other person before whom a deposition is to be taken is hereby authorized to administer oaths and take testimony remotely, so long as that officer or other person can both see and hear the deponent via audio-video communication equipment or technology for purposes of positively identifying the deponent.” In addition, all parties are reminded that, “[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."
Maryland Maryland Governor Larry Hogan issued a Waiver of In-Person Notarization of Documents effective March 30, 2020. The Order further provides guidance to notaries public on the use of communications technologies that permit the notary to see and hear the person signing a document in real time
Massachusetts

On March 20, the state of Massachusetts enabled court reporters to “administer oaths and take testimony without being in the presence of the deponent, so long as the officer or other person before whom the deposition is to be taken can both see and hear the deponent via audio-video communication equipment or technology for purposes of positively identifying the deponent.”

In the same document, attorneys were reminded that Mass. R. Civ. P. 29. authorizes that “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 maybe used like other depositions; and (2) modify the procedures provided by these rules for other methods of discovery."

On May 26th, the Massachusetts Supreme Judicial Court issued an order further reinforcing the validity of remote depositions. This order clarifies that remote depositions do not require a stipulation, and that “[t]he desire of counsel, a party, or a deponent to appear in person shall not alone be sufficient grounds to quash a notice for a remote deposition or to refuse to make a witness available for a remote deposition.”

Michigan No update at this time.
Minnesota No update at this time.
Mississippi No update at this time.
Missouri On March 25th, the Supreme Court of Missouri “suspend[ed] any local or Missouri Supreme Court rule that may be interpreted to require administering any oath or affirmation in-person when such oaths or affirmations can be administered remotely by available technologies, including videoconferencing or teleconferencing, and is not otherwise prohibited by any statutory or constitutional provision.".
Montana No update at this time.
Nebraska No update at this time.
Nevada No update at this time.
New Hampshire

On March 23rd, New Hampshire Governor Chris Sununu issued Emergency Order #11 , which defines the methods by which “a notarial officer commissioned under the laws of this State may perform a notarization for an individual not in the physical presence of the notary officer.” Furthermore, “if a State law requires an individual to appear personally before or be in the physical presence of a notarial officer at the time of a notarization that requirement shall be satisfied if the individual and the notarial officer are not in the physical presence of each other but can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.”

New Jersey No update at this time. 
New Mexico  No update at this time. 

New York

New York Civil Practice Rule 3113  already permitted parties to stipulate that the notary may participate remotely: “Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.”

New York CVP Rule 3113(d) gives attorneys the ability to stipulate whether the court reporter needs to be present: “Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition”
 

Prior to the rescission of Administrative Order 88/20, New York state courts liberally construed it’s language; with one court even compelling remote depositions in a medical malpractice matter.  On the whole, New York jurisprudence demonstrates a landmark willingness to shift from traditional to remote depositions, and even compel remote depositions as the COVID crisis continues to stifle the discovery process.

North Carolina

N.C. Industrial Commission has amended medical motion hearings procedures arising under G.S. §97-25(f) to allow for parties to appear remotely if needed. The Commission strongly encourages parties to explore options that avoid appearing remotely by submitting Pre-Trial Agreements or taking lay witness testimony by deposition.
 

Parties are not required to appear remotely upon approval of the Deputy Commissioner if no lay witness No update at this time.is required or agree to take lay witness testimony by deposition.

Otherwise, the requirement for remote court reporters remains intact.
 
On May 4th, North Carolina Governor Cooper temporarily authorized video notarization as a part of Senate Bill 704. Now licensed notaries are able to perform notarial acts as long as they can clearly see and hear the remote signer. The affiant must be in North Carolina, and must identify which county they are in. These rules will be in effect at least until August 1, 2020.
North Dakota No update at this time.
Ohio No update at this time.
Oklahoma No update at this time.
Oregon No update at this time.

Pennsylvania

On March 21, “Governor Wolf granted the Department of State’s request to suspend the requirement for physical presence of notaries who are court reporters/stenographers participating in criminal, civil and administrative proceedings in this Commonwealth.”

Depositions can be held “via phone conference, videoconference, or web deposition if a court reporter could participate remotely.”

Governor Wolf “approved the request to suspend the physical presence of notaries who are court reporters or stenographers participating in criminal, civil and administrative proceedings.”

Rhode Island No update at this time.
South Carolina No update at this time.
South Dakota No update at this time.
Tennessee No update at this time.
Texas

On March 13, the Texas Supreme Court permitted “all courts in Texas” to “[a]llow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, or court reporter, but not including a juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means;”

This order effectively temporarily suspends the requirement in Rule 199.1.(b) which required the deposition officer (namely, the court reporter) to be in the presence of the witness or the party noticing the deposition. The attorney representing the deponent can attest to the identity of the witness, and the court reporter can enter that on the record.


Furthermore, Texas Rules of Civil Procedure already allowed for “alternative methods of conducting or recording a deposition.” (Rule 199.1)


In addition, the Office of Court Administration is encouraging judges to use remote
technology for hearings, and has set up a page to help courtrooms use Zoom technology.

On April 27th, the Supreme Court of Texas issued Misc. Docket No. 20-9059, an Emergency Order which explicitly allows “anyone involved in any hearing, deposition, or other proceeding of any kind … to participate remotely, such as by teleconferencing, videoconferencing, or other means,” and that the court should “[c]onsider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means.

Utah No update at this time.
Vermont No update at this time.
Virginia No update at this time.
Washington Washington Governor Jay Inslee issued Proclamation 20-27,enacting WA Senate Bill 5641 and ordering it to be immediately effective. SB 5641 – An Act Relating to Electronic Notarial Acts by Remotely Located Individuals —was scheduled to take effect October 1, 2020. By fast tracking Senate Bill 5641, the inferred intent is that this is a permanent measure.
West Virginia On March 25, 2020, West Virginia Governor Jim Justice issued WV Emergency Rule 153-45-27 (2020) and WV Governor Executive Order 11-20 temporarily waiving the personal appearance requirement for most notarial acts in West Virginia during the COVID-19 state of emergency.
Wisconsin The WI Supreme Court ordered that “court reporters taking depositions in this state need not be in the physical presence of the witness for the purpose of administering an oath for a deposition upon oral examination pursuant to Wis. Stat. §§ (Rules) 804.03 and 804.05 or court order so long as the court reporter can both see and hear the witness via audio-visual communications equipment for the purposes of readily identifying the witness. … court reporters qualified to administer an oath in the State of Wisconsin may administer an oath to a witness at a deposition remotely via audio-visual communications technology from a location within the State of Wisconsin, provided the person administering the oath can see and hear the person and can identify the witness … [I]f a witness is not located within the State of Wisconsin, the witness may consent to being put on oath remotely via audio-visual communication technology by a court reporter qualified to administer an oath in the State of Wisconsin pursuant to this order.”-
Wyoming No update at this time.

Conclusion

Court systems across the country clearly recognize the danger of face-to-face interactions such as depositions in the midst of a pandemic crisis, and are reacting immediately to allow parties to take depositions remotely. At Lexitas, we welcome this flexibility to continue the taking of depositions.

Note: This is purely informational, and not intended to be legal advice. Please consult with local rules for any updates or clarifications.

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