Legal Updates

Massachusetts SJC Streamlines Process For Remote Depositions

As of February 1, 2025, Massachusetts Rule of Civil Procedure 30(b)(4) has been amended to provide litigants and their attorneys with guidance in conducting remote depositions.

Background

Prior to the COVID-19 pandemic, remote depositions were unusual, generally limited to situations in which a witness’s physical condition or geographic location would make it difficult for the witness to appear in person. Since then, remote depositions have been commonplace.

Until recently, however, the rules of civil procedure did not specifically address the circumstances under which remote depositions were appropriate or the manner in which they should be conducted. That has changed with the recent amendments to Rule 30(b)(4) which codify the principle of “noticer’s choice” – i.e., the party noticing a deposition generally has the right to decide whether to conduct the deposition in person or remotely.

New Requirements

Rule 30(b)(4)(a) now explicitly allows parties to conduct depositions remotely in accordance with certain requirements. For example, the deposition notice must identify the video-conferencing platform and include, as reasonably far in advance of the deposition as possible, the information (such as a Zoom link) needed to participate in the deposition. The amended rule also provides that a person authorized to administer oaths and record a deposition by stenographic means may do so remotely, as long as that person can both see and hear the deponent for identification purposes.

The new rules also require that the video-conferencing platform be able to show a real-time list of persons attending the deposition, and all attendees must make reasonable efforts to be on that list. The sound and video feeds for the deponent, counsel and the court reporter must remain on while the deposition is “on the record.” Other attendees should mute their sound feeds and, unless they are in the same physical location as the deponent, shut off their video feed when not speaking. Persons participating in the deposition from the same physical location as the deponent must log on separately.

As with in-person depositions, only those persons entitled to attend a remote deposition are allowed to observe the deposition. If any person enters the physical location where the deponent is located, the deponent (or counsel) must notify the stenographer and identify the person or persons entering the room.

The amended Rule 30(b)(4)(a) also states that a remote deposition may be recorded by video and audio means. Typically, unless other conditions are agreed to or ordered by the court, the videographer will record only the deponent, except that, at the request of the questioning party, a split screen may be used to publish exhibits. No person other than the videographer or court reporter may record a remote deposition.

The new rules require counsel and the parties to cooperate in planning for and conducting remote depositions. In appropriate circumstances, a party may ask the court to order that a deposition take place remotely rather than in person. Factors that may be considered as part of such requests include whether there is a spike in seasonal illnesses, the age and health of the deponent, and whether an in-person deposition would pose an undue hardship with regard to cost or travel.

Finally, under the amended Rule 30(b)(4)(a), persons who are deposed remotely are not presumptively considered to be “unavailable” for purposes of trial.

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Schwarz Hannum’s litigators stay abreast of the latest developments in litigation procedures at both the state and federal level. Do not hesitate to contact one of our litigation team if you have any questions about deposition practice or civil litigation in general.