The Washington Supreme Court recently approved significant revisions to that state’s procedural rules on remote depositions. Revised Rule 30 of the Washington Civil Rules will now allow remote depositions to be noticed without leave of court, subject to a very short time window for filing objections. The new rules also contain detailed restrictions on attorney and witness behavior during remote depositions.
The new rules, which took effect Oct. 1, 2024, were developed by the Board for Judicial Administration’s Remote Proceedings Work Grouphttps://www.courts.wa.gov/programs_orgs/pos_bja/?fa=pos_bja.courtRemoteTF%23:~:text=The%2520BJA%2520Remote%2520Proceedings%2520Workgroup,or%2520other%2520funding%2520as%2520needed..
Deposition practice in Washington has evolved several times since the early days of the COVID-19 pandemic. The state supreme court, in an emergency order entered May 28, 2020, kept civil litigation moving along by encouraging lawyers “to conduct discovery by remote means whenever possible.” Two years later, the court, apparently satisfied with the bar’s experience with remote depositions, entered on Oct. 27, 2022, a subsequent administrative order providing that depositions “shall be performed remotely absent agreement of the parties or a finding of good cause by the Court to require the depositions be performed in person.”
The court’s most recent order reflects continuing high court support for remote depositions. However, instead of a prescriptive approach – e.g., depositions “shall be performed remotely” – Rule 30 now permits remote depositions to take place by notice alone, providing the opposing party a mere three days to file an objection.
Trial courts entertaining objections to remote depositions are asked to consider the following non-exhaustive factors when reaching their decision:
- the role of the witness
- the complexity of the litigation
- whether the objecting party will be prejudiced by remote testimony
- whether the witness is subject to the court’s subpoena power
A final consideration mandated by revised Rule 30 is whether a remote deposition promotes the “just, speedy, and inexpensive determination” of the litigation. Since July 9, 2024, Washington Civil Rule 1 specifically identifies remote proceedings as a means of advancing this objective.
The state supreme court also approved new language addressing concerns about the integrity of remote depositions, including:
- no alterations to the witness’s demeanor and appearance can be made
- every person in the room with the witness must be audible and visible during the entirety of the deposition
- the witness may not refer to notes or electronic communications such as e-mail or chat during the deposition
- similarly, no one may attempt to influence the witness’s answer to a question with notes, words, gestures, or electronic communications such as e-mail and chat during the deposition
It is uncommon to see remote depositions regulated at such a detailed level. Compared to Rule 30 of the Federal Rules of Civil Procedure, which has little specific to say about remote depositions, Washington’s revised Rule 30 reflects a great deal of thought about how remote depositions are different than in-person depositions and how guardrails might be placed around remote proceedings to ensure that their benefits are preserved without compromising the integrity of the fact-finding process.
The American Bar Association covered much of the same ground last year in Resolution 505 Best Practices for Remote Depositions, which suggested that lawyers write their own remote deposition ground rules through remote deposition protocols.
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