Remote video depositions are taken scores if not hundreds of times every single day across Tennessee, but as of yet we have no formal rule directly addressing their use.
Some states do. Massachusetts has released a proposed rule for public comment. While keeping in-person depositions as the default rule, the proposed rule adds this language to the state’s deposition rule:
(4) By Remote Means. By leave of court upon motion with notice and opportunity to be heard in opposition, or by stipulation in writing of all parties, a deposition may be taken in a civil case pursuant to Mass. R. Civ. P. 30 remotely by telephone or video-conferencing platform (remote deposition), in a manner that allows for the deponent, all other persons entitled to attend and all other necessary persons (e.g., the officer/court reporter) to participate without attending the deposition in person, subject to the following:
(A) In addition to any other requirements in the applicable rules, the notice of a
remote deposition shall specify, reasonably in advance of the deposition, the
information needed to participate in the remote deposition, including but not
limited to the identification of the remote video-conferencing platform.(B) An officer or other person before whom the deposition is to be taken is authorized
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 for purposes of positively identifying
the deponent.(C) The sound and video feeds for the deponent, participating counsel for the parties,
self-represented parties, and the court reporter must remain on while the
deposition is on the record. Other attendees should mute their sound feed and
should shut off their video feed when not speaking, after identifying themselves
for the record. Only persons who would be entitled to attend a live deposition in
the case may observe the remote deposition. Any person who attends a remote
deposition, at any time during the deposition, shall be identified for the record.
The video platform used for the deposition must be able to show a real-time list
of those persons attending the deposition and attendees must take reasonable
efforts to be identified on that list.(D) Only the deponent’s counsel and in-house counsel for a party-employed deponent
are permitted to be in the same physical location as the deponent during the
remote deposition. If the deponent counsel and in-house counsel are present in
the same physical location as the deponent during a remote deposition, they must
separately log in to the remote deposition so that they are individually identified
during the remote deposition and the deponent can be shown separately. If any
person enters the room where the deponent is located during the deposition, the
5677852.4 deponent or counsel in the room shall immediately notify the examining attorney
or self-represented party.(E) For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1), and 45(d), a
remote deposition shall be considered taken in the county and at the place where
the deponent is located.(F) Parties and deponents must confer and cooperate to the fullest extent possible to
attempt to resolve all issues related to remote depositions, including the video
platform that will be used and the handling of exhibits during the remote
deposition. The parties and deponents must cooperate with each other, the court
reporter, and the operator/videographer, if any, in planning for and conducting
remote depositions.(G) Where an audio-visual recording of a deposition is conducted pursuant to this rule,
the operator/videographer may record remotely, following the procedures set
forth in this rule. Unless all parties agree or the court orders otherwise, during
the deposition, the operator/videographer will video record only the deponent,
except that, at the request of the questioning attorney or self-represented party,
a split screen may be used as necessary to record an exhibit while the deponent is
being questioned concerning the exhibit. The deponent must be provided a video
feed of the questioning attorney or self-represented party. No person other than
the operator/videographer and court reporter may record the deposition by video
or audio means.(H) Nothing in this rule is intended to: (i) address whether a remote deponent is
deemed “unavailable” within the meaning of Mass. R. Civ. P. 32(a)(3) for the
purposes of using that witness’s deposition at trial; or (ii) alter a court’s authority
to compel testimony of non-party witnesses.
Washington state took a different approach, and make remote video depositions the default method of taking pretrial discovery. Here is the Washington Supreme Court order.
Also, here are the “best practices” for remote video depositions as published by the ABA.
It remains to be seen whether Tennessee will tackle this issue. In the meantime, however, the rules used in other courts are helpful in drafting stipulations for conducting remote video depositions or for asking courts for appropriate protections when a remote video deposition is ordered.