Oaths in a Covid World: The Benefits and Downfalls of Virtual Deposition Oaths

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Pat Mullinger, Associate Member, University of Cincinnati Law Review

I. Introduction         

Since March of 2020, Covid-19 has rocked the legal field. The ordinary course of business changed within days, and all jurisdictions sought to adjust to the ever-changing state of Executive Health Orders.[1] In the pandemic landscape the world—and more specifically the legal sector—lessons can be learned from the immense stress induced by Covid. One of the most useful tools to continue utilizing in a post-Covid world is the virtual deposition. Many jurisdictions encouraged depositions virtually, as virtual depositions are inherently safer in stopping the spread of Covid-19.[2] Not only is a virtual deposition safer, but it also is important to prevent delays in court proceedings, especially as society is still navigating the global health crisis.[3] This tool, however, raises imminent questions. This blog will focus on the importance of virtual oaths for swearing in deponents and propose a legislative amendment to ensure virtual depositions are utilized in a post-pandemic world.

II. Discussion

Virtual depositions have always been possible under Fed. R. Civ. P. 30.[4] However, prior to Covid-19, virtual depositions required a stipulation by the court or the parties involved in the deposition.[5] As of November 2020, however, remote depositions were the norm, totaling over 85 percent of depositions provided by Esquire Deposition Solutions.[6] These depositions were conducted through various telecommunication systems, such as Zoom, Webex, and Microsoft Teams.[7]

While these virtual systems make life easier, the legal field is often slow to adapt to new technology. This is where the pandemic may have been beneficial – forcing lawyers to adapt rapidly. The Covid-19 pandemic illuminated much about the virtual deposition process. First, the convenience of remote work is extremely beneficial to the entire discovery process. Attorneys have discovered that E-discovery forces a semblance of mutual understanding, decreasing the need for trivial motions.[8] Second, taking a deposition from the attorney’s home residence or firm office eliminates costs for flights, meals, hotels, and any other expenses which occur during travel. Third, the attorneys who must travel long distances can spend more time on activities that cannot be done while sitting on an airplane or in a car. Fourth, for less important fact witnesses, an in-person deposition may be extremely costly, while a remote deposition decreases these costs. Fifth, a virtual deposition for an expert witness may be more conducive for their busy schedules. Lastly, a remote deposition rapidly increases the speed of which deposition transcripts can be created.[9]

While there are clear benefits to remote depositions, there are some drawbacks. Depositions are vital to understand the credibility of a witness.[10] Without being in the same room, it may be difficult to understand the demeanor of the witness while testifying.[11] Additionally, a deposition is often an opportunity for the attorney to evaluate the opposing attorney in the action.[12] In a virtual deposition, the opposing attorney may never even turn on their camera. While these issues with virtual depositions are present, they do not outweigh the potential benefits that remote depositions present.

However, the Federal Rules of Civil Procedure may not allow for permanent utilization of virtual depositions. Rule 28(a)(1)(A) and (B) dictate that a deposition must be taken in front of an officer authorized to administer oaths by federal law or the law in the place of the examination, or a person appointed by the court where the action is pending to administer the oath. However, there is no mention of remote oaths in the committee notes.[13] In addition, Rule 30’s committee notes contain no language to guide the oath-taking process.[14]

Currently, each jurisdiction in the United States has their own rules guiding the Federal Circuit courts, as well as state courts. Most of these states are in line with the executive health orders set forth by their respective governor; however, this creates an extremely convoluted territory for in person depositions.[15] While these rules were enacted to ease the remote oath-taking process, a majority of rules were issued by executive order or Supreme Court orders.[16] Additionally, many of these states have not updated their rule for remote oaths since the start of the pandemic or since the last update was made.[17] This process is especially time consuming for foreign lawyers who pro hac vice in to cases, as they must dig through a plethora of Covid-19 rules that the jurisdiction created to ease the difficulties of the pandemic.[18]

However, there is an easy solution to this issue through a new proposed amendment to the Federal Rule of Civil Procedure 30(b)(4) and Rule 30(b)(5)(A). A clear section stating that an oath performed by a duly appointed officer in Rule 28(a)(1) may be taken remotely will drastically increase the capacity of the courts. Additionally, this proposed amendment will clarify who can take an oath under 28(a)(1)(B), as the jurisdiction where the action is pending grants authority to give an oath to an officer.[19] The language of the proposed amendment will be listed under Rule 30(b)(4)(A) and will say, “An authorized officer under Rule 28 may give an oath through virtual means, carrying the same weight and authority as an in-person oath.” This proposed amendment would grant clarity to all federal courts. It is likely that once this rule is implemented, many state jurisdictions will amend their own rules to follow similar language as the federal rules.

III. Conclusion

While the time in this pandemic created many stressors on everyday life, we must take a second to look for the positives. The ability of the legal profession to pivot rapidly is nothing short of inspiring. With this proposed amendment, clarity, and hopefully efficiency, will follow. The legal profession should continue to adapt, adjust, and aspire to be zealous advocates for clients. Clients will benefit from less costs for conducting an in-person deposition, and the legal profession will benefit from the ability to spend less time on travel, more time working for clients, or having much deserved leisure time. This proposed amendment would grant all the benefits of virtual depositions while still allowing for in-person depositions to be conducted when needed.


References

[1] Ohio Executive Order 2020-01D. Ohio declared a state of emergency, which, in large part, shut down all proceedings of the state government. The order stipulates that the emergency will remain “in full force and effect until the emergency no longer exists.” The Supreme Court Order on July 31, 2020 followed these guidelines and allowed for remote oaths to be taken by the court.

[2] See Gonzalez v. IronTiger Logistics, No. 4:18-cv-03454, 2020 U.S. Dist. LEXIS 196286, at 4-6 (S.D. Texas, Oct. 22, 2020) (See also Rivera v. Parker, No. 1:20-CV-3210-SCJ, 2021 U.S. Dist. LEXIS 138168, at 6 (N.D. Georgia, My 18, 2021) (declaring that a high risk 58-year-old woman may have her deposition taken remotely)); Reynard v. Washburn Univ. of Topeka, No. 19-4012-HLT-TJJ, 2020 U.S. Dist. LEXIS 118631, 15-18 (D. Kansas, July 7, 2020) (elderly woman’s deposition to take place remotely because of heightened risk factors from Covid-19 exposure).

[3] See 2020 U.S. Dist. LEXIS 196286, at 4 (S.D. Texas, Oct. 22, 2020) (signifying the importance of remote depositions in keeping the courts workloads reasonable).

[4] Fed. R. Civ. P. 30(b)(4). Parties may stipulate a deposition be taken remotely by telephone or other remote means.

[5] Id.

[6] Esquire Deposition Solutions, LLC, Will In-Person Depositions Vanish Before Covid-19?, JDSUPRA (Nov. 18, 2020), https://www.jdsupra.com/legalnews/will-in-person-depositions-vanish-60128/ [https://perma.cc/U7BW-5M2Q].

[7] Aaron Goodman, Mastering the Virtual Deposition, Bloomberg Law (2020), https://www.bakermckenzie.com/-/media/files/people/goodman-aaron/bloomberg–mastering-the-virtual-deposition-published.pdf?la=en. [https://perma.cc/7NZK-4UH9]. This article discusses the impact of Zoom video conferencing taking hold in most vendors, as they are primarily building upon Zoom’s platform to make it more secure.

[8] Dipshan Rhys, Brave New World: 5 Ways Covid-19 Is Changing E-Discovery, Bloomberg Law (Aug. 21, 2020), https://www.law.com/legaltechnews/2020/08/21/brave-new-world-5-ways-covid-19-is-changing-e-discovery/?tokenvalue=8455E9D5-D622-4C90-8C88-A1778A1B58B5 [https://perma.cc/M7FM-GH9U].  

[9] Goodman, supra note 7, at 3-4. Discussing the benefits of a real time transcript solving a current issue with court reporters struggling to dictate lawyers and witnesses talking over each other.

[10] See Barak Cohen, Remote Depositions and Other Remote Testimony: Representing Clients in the New Normal, Perkins Coie (July 9, 2020), https://www.perkinscoie.com/en/news-insights/remote-depositions-and-other-remote-testimony-representing-clients-in-the-new-normal.html [https://perma.cc/VXM5-5YWV].

[11] See United States of America v. 2003 BMW X5 SUV, VIN 5UXFB93573LN80798, No. WDQ-14-0912, 2015 WL 2330292, 1 (D. Maryland, May 15, 2015) (showing that an in-person deposition allows observations of the deponents demeanor).

[12] Goodman, supra note 7, at 4.

[13] See Committee Notes, Fed. R. Civ. P. 28.

[14] See Committee Notes, Fed. R. Civ. P. 30.

[15] Geoffrey Vance, US Remote Depositions and Oath Status, Perkins Coie (Sept. 2, 2021), https://www.perkinscoie.com/en/news-insights/us-remote-deposition-and-oath-status.html [https://perma.cc/UYG8-B9M5] (This website currently lays out all the executive health orders for each state).

[16] Id.

[17] Id. at Maine, Maryland, Mississippi, South Carolina, Tennessee, Utah. New Hampshire has not renewed the Executive order, so it is unclear whether remote depositions are still allowed. The Covid-19 orders in many other states will expire within the year.

[18] Pro Hac Vice, Black’s Law Dictionary (11th ed. 2019) “refers to a lawyer who has not been admitted to practice in a particular jurisdiction but who is admitted there temporarily for the purpose of conducting a particular case.” When a lawyer pro hac vice’s they must familiarize themselves with the rules of the jurisdiction. A simplified process decreases risk of malpractice and increases judicial efficiency through competent lawyers. 

[19] Fed. R. Civ. P. 28(a)(1)(B). A person appointed by the court where the action is pending can administer oaths and take testimony. The proposed legislation could be seen as nullifying Fed. R. Civ. P. 28(a)(1)(A) – stating an officer can be authorized through federal law or by the examination jurisdictions law – however this is not the case. Since in person depositions will still occur, an officer in the jurisdiction will add the benefit of the weight of an oath.