Due to the ongoing spread of the novel coronavirus, COVID-19, on March 19, 2020, Governor Newsom issued an executive order requiring all individuals living in the State of California to stay home or at their place of residence, except as needed to maintain continuity of operation of essential critical infrastructure sectors. Essential services that will remain open include grocery stores, gas stations, pharmacies, banks, laundromats and essential government functions, such as law enforcement and offices that provide government programs and services.1
Even after this executive order is lifted, it will be critical to maintain social distancing. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting depositions remotely.
Code of Civil Procedure § 2025.310(a) states, “A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means.” A party is not required to obtain the consent of the other party or the court before scheduling a deposition by telephone or other electronic means. Instead, California Rules of Court, rule 3.1010(a) states, “Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:
- Notice is served with the notice of deposition or the subpoena;
- That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it; and
- Any party may be personally present at the deposition without giving prior notice.”
Accordingly, in order to take a deposition by telephone, videoconference, or other remote electronic means, a party is only required to serve notice that it intends to do so and make arrangement for any other party to participate in an equivalent manner. Rule 3.1010(b) allows any party to appear by telephone, videoconference, or other remote electronic means provided it serves written notice of such appearance by personal delivery, e-mail, or fax at least three court days before the deposition and makes all arrangements and pays all expenses incurred for the appearance.
Labor Code § 5710 provides that depositions in workers’ compensation proceeding are “to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ….” Accordingly, the WCAB has recognized that these provisions allow remote depositions in workers’ compensation proceedings. (Simmons v. Just Wingin’ It, Inc. (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.)
Note that while the attorneys and other persons, such as an employer representative, may appear at a deposition remotely, a party deponent may not. Code of Civil Procedure § 2025.310(a) states “any person other than the deponent may attend” a deposition remotely. Moreover, § 2025.310(b) states, “A party deponent shall appear at the deposition in person and be in the presence of the deposition officer.”
Similarly, California Rules of Court, rule 3.1010(c) states, “A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer.” Rule 3.1010(d), on the other hand states, “A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party.” Thus, while the rules require party deponents (i.e., injured workers or employers) to appear at a deposition in person with court reporter, a nonparty deponent (e.g., a doctor or co-worker) may appear remotely with a court order.
Neither the Code of Civil Procedure nor the California Rules of Court discuss whether the parties may waive the requirement that a party deponent appear at the deposition in person. Because of the emergency situation created by the spread of COVID-19, there seems to be no reason why the parties cannot also agree to allow a party deponent to testify remotely.
California Rules of Court, rule 3.1010(e) states, “On motion by any person, the court in a specific action may make such other orders as it deems appropriate.” Therefore, if the parties waive the requirement for a deponent to appear in person, it will likely be enforced by the WCAB. Any agreement should be confirmed in writing beforehand to avoid any misunderstandings.
While there are obviously many good reasons for attorneys to be physically present, such as having the opportunity to observe the deponent’s demeanor or confronting the deponent with other physical evidence, at the present time, these considerations should give way to public safety. Because of COVID-19, remote depositions must be considered for the foreseeable future in order to protect the injured worker, the attorneys, and the community as a whole.