April 02, 2020 BY Gary McGinty
Depositions in Georgia in the Age of COVID-19
It’s hard to imagine anything in today’s world that has not been impacted by COVID-19. The legal profession is, of course, no exception. Lawyers must be prepared each day to respond and adjust to the shifting sets of challenges presented by the coronavirus pandemic. The goal for each attorney should be to provide excellent legal services while ensuring that everyone involved stays healthy and safe. For depositions during this time, we feel that this goal is most effectively accomplished via remote video conferencing.
O.C.G.A. § 9-11-30 governs depositions in Georgia. It provides that a deposition “may be taken by telephone or other remote electronic means only upon the stipulation of the parties or by order of the court.” O.C.G.A. § 9-11-30(b)(4) (emphasis added). Additionally, the statute requires that depositions be conducted before an authorized officer or court reporter, and the authorized officer or court reporter is required to put the witness on oath and personally record the testimony of the witness. O.C.G.A. §§ 9-11-30(b)(4) and (c)(1).
The statutory language is clear: a remote video deposition is permissible either by the parties’ stipulation or by court order. Thus, we are left with the following two questions: (1) what should be done about the court reporter; and (2) what is the best way to arrange for a remote video deposition. Each question is analyzed below.
(1) The Court Reporter and the Oath
Given the current conditions and uncertainty surrounding COVID-19 and its spread, we feel that it is unwise to insist on a witness and court reporter to be in the same room (even if they are six feet away). Furthermore, in the growing number of areas subject to government orders to “stay at home” or “shelter in place”, it is impossible to require that a witness and court reporter be in the same physical location and remain in compliance with those orders. In response to this issue, some states have issued emergency orders permitting the remote administration of oaths. No Georgia court has issued such an order, so many attorneys are now left wondering how to conform with the Georgia rules governing depositions in the midst of a pandemic.
The Federal Rules provide that “unless the parties stipulate otherwise”, a deposition “must be conducted before an officer appointed or designated under Rule 28.” FRCP Rule 30(b)(5)(A). So while “conducted before” has been generally interpreted by Federal Courts to mean that the court reporter or authorized officer should be in the presence of the witness, there is also at least language in the statute indicating that parties can stipulate to the court reporter conducting his or her duties remotely.
In Georgia, however, there appears to be no such statutory language. O.C.G.A. § 9-11-30 provides that “[a] deposition shall be conducted before an officer appointed or designated under Code Section 9-11-28.” Additionally, O.C.G.A. § 9-11-30(c)(1) provides that “the authorized officer or court reporter before whom the deposition is to be taken shall put the witness on oath.” So, it seems that, based on the plain language of O.C.G.A. § 9-11-30, litigants are unable to conduct a video deposition with all parties, including the court reporter, participating remotely. This result seems unreasonable given the public health crisis.
Recently, the Board of Court Reporting of the Judicial Council of Georgia issued Advisory Opinion 2020-01 which directly addresses this issue. The opinion notes that “[n]o appellate legal authority interpreting this code section to impose a live swearing-in requirement could be located; however, no legal authority interpreting it to bar remote swearing-in was located either.” The opinion then analyzed the appellate legal authority on the administration of oaths by notaries. It cited Redmond v. Shook, 218 Ga. App. 477 (1995), which held that an affidavit signed by an expert in Pennsylvania and notarized in Georgia was invalid, stating the following: “[i]n order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. There must be some solemnity, not mere telephone talk. Long-distance swearing is not permissible. Thus, an oath cannot be administered over the telephone in Georgia. This is the rule in most jurisdictions.” Id.
The opinion distinguishes that rule as only barring “notarial oath[s], not the oath administered by a court reporter.” Additionally, the authors of the opinion indicated that the Redmond holding might have been different if, instead of a telephone call, the case hinged “on the use of the sophisticated videoconferencing systems available today.” The opinion then draws on O.C.G.A. § 9-11-29, which broadly allows parties to modify deposition or discovery procedures by a written stipulation. Specifically, the statute provides that parties, upon a written stipulation, may take depositions “before any person, at any time or place, upon any notice, and in any manner.” O.C.G.A. § 9-11-29(1) (emphasis added). Based on that, and because no direct authority was found in opposition, the opinion stated that “certified court reporters may administer oaths remotely so long as the parties stipulate in writing pursuant to O.C.G.A. § 9-11-29” and the oaths are administered via videoconferencing.
This conclusion is helpful for attorneys seeking to move their cases forward while continuing to abide by public health officials’ admonitions to maintain social distancing. Georgia lawyers should feel comfortable taking a remote video deposition as long as there is a clear, written stipulation, properly executed by both attorneys, providing for (a) the remote video deposition and (b) a remote swearing-in by an authorized court reporter not in the physical presence of the deponent. The next question, then, is how to actually conduct a remote video deposition efficiently and effectively.
(2) The “How To” Problem
For those looking for ways to minimize the already-massive interruption caused by COVID-19, remote video depositions--in theory--sound like a great option. However, the actual mechanics for how to successfully conduct a remote video deposition is a mystery to most of us. It seems that, frankly, the people most comfortable with this alternative form of deposition are the marketers employed by court reporting firms. Though that is likely true, our preliminary research has actually shown that today’s technology has made remote video depositions easier and more cost-effective than one might expect.
To that end, we are using the following checklist to ensure that remote video depositions go as smoothly as possible:
- Reach out to the court reporting firms that you typically use to ensure that they have the capability to facilitate a remote video deposition with a stenographic court reporter.
- Ask the court reporter what equipment each party will need to participate, and make sure that the court reporter will be using a videoconference that is easy to use (such as Zoom) and will send a link that all parties and the witness can easily access on the day of the deposition.
- Confirm that your client or witness has the technical capabilities for videoconferencing. This typically just means that they have adequate internet access and a device--such as a computer, tablet, or smartphone--with a front facing camera, a microphone, and a speaker.
- Obtain the above-mentioned written stipulation. Again, make sure that it clearly indicates that the deposition will be conducted remotely, and the witness will be sworn-in by a court reporter who is also participating remotely.
- Enter into some sort of written agreement, possibly even in the stipulation, with all participating counsel as to what would happen should there be technical difficulties.
- Clarify with the court reporting firm how exhibits will be handled, marked, exchanged, and added to the record before and during the deposition. Be sure that all participating counsel is aware of and can easily comply with the agreed-upon procedure.
- Make sure that the court reporter is able to prevent parties from coaching the witness via the video conference platform’s chat feature or by text messaging. Additionally, one might ask the court reporter whether all participants can be partitioned into separate virtual “rooms” and/or always be on camera when speaking on the record – to avoid a lawyer being able to signal to his/her witness out of the camera’s view.
- Consider whether the video deposition will be recorded on video or only stenographically. Court reporting firms should offer both options.
- File and serve a notice of remote video deposition.
- If the deponent is your own witness, schedule a deposition prep session the day before the deposition. In doing so, each person can test out the format and be sure that they have the required technical capabilities. This can be done easily using Microsoft Teams (which each attorney at our firm has access to), or by using Zoom, Google Hangouts, or Skype, all of which would closely mimic the experience of a video deposition facilitated by a court reporting firm.
We should note some of the downsides associated with remote video depositions. One issue is the obvious fact that an attorney would only “see” the witness virtually. Depositions are typically one of the few opportunities to meet, or “confront,” a witness face-to-face before trial. However, if done correctly, a video deposition would still allow lawyers to interact closely with a witness, obtain relevant testimony, and, most importantly, not delay the case’s progress. Another issue is how intimidating it can sound to arrange for a virtual video deposition that will go on the record. But, as mentioned above, technology has advanced remarkably in this area. It is no exaggeration to say that anyone with a laptop or smartphone would have the skills and equipment to make a remote video deposition a very viable option.
To be sure, remote video depositions offer drawbacks that attorneys must be aware of. They are not as straightforward as the old-fashioned deposition, they require a bit more planning on the front-end, and there may be a technological learning curve. But, given the current public health crisis, these sorts of depositions might be the only ones available for the foreseeable future. At the very least, remote video depositions can be a tool for attorneys who want to move cases forward and offer clients a better option than just the wait-and-see strategy. The COVID-19 pandemic has us in uncharted waters and, to stay afloat, we must be ready to offer creative and flexible solutions to our clients’ problems.
 See Menovcik v. BASF Corp., No. 09–12096, 2010 WL 4867408 at *4–5 (E.D.Mich. Nov.23, 2010) (denying motion to permit videoconference deposition of nonparty witness in Thailand without arrangement for a person to be with deponent to administer oath); Advani Enters. v. Underwriters at Lloyds, No. 95 Civ 4864, 2000 WL 1568255 at *2–3 (S.D.N.Y. Oct.19, 2000) (permitting telephonic depositions of witnesses in Egypt so long as deposing party complies with Rule 28(b) including “necessarily a means by which to place the deponents under oath by a person located in Egypt”); Aquino v. Auto. Serv. Indus. Ass'n, 93 F.Supp.2d 922, 923–24 (N.D.Ill.2000) (finding procedurally defective and inadmissible telephonic depositions where court reporter swore each out of state witness over the phone); Tile Unlimited, Inc. v. Blanke Corp., No. 10 C 8031, 2013 WL 1668194, at *3 (N.D. Ill. Apr. 17, 2013); Phye, 2007 WL 2681106, at *1 (quoting Loucas G. Matsas Salvage & Towage Mar. Co., 1997 WL 102491, at *2) (“Case law on this issue, while not abundant, is clear. ‘Rule 28(b) specifically requires that the witness testify “before” an official, i.e., at the same place as the official, and that the official be authorized to administer oaths where the examination is held.’ ”); United States v. Ruiz Castro, 92 F.3d 1519, 1533 (10th Cir.1996), overruled on other grounds by United States v. Flowers, 464 F.3d 1127 (10th Cir.2006) (denying motion for leave to depose by telephone where its proponent “neither referenced any treaties nor did he state that [the proposed deponent] would testify ‘before’ a person authorized to administer oaths as described in Rule 28(b))”).
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley