From Navigating COVID-19
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Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Even after the executive order is lifted, maintaining social distancing will be critical to avoid contracting COVID-19. The workers' compensation community is not excused from this protection. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting it remotely.
Code of Civil Procedure § 2025.310(a) states, "A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means." A party is not required to obtain the consent of the other party or the court before scheduling a deposition by telephone or other electronic means. California Rules of Court, rule 3.1010(a) states, "Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:
- Notice is served with the notice of deposition or the subpoena;
- That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it; and
- Any party may be personally present at the deposition without giving prior notice."
So, in order to take a deposition by telephone, videoconference or other remote electronic means, a party is required only to serve notice that it intends to do so, and to arrange for any other party to participate in an equivalent manner. Rule 3.1010(b) allows any party to appear by telephone, videoconference or other remote electronic means if it serves written notice of such appearance by personal delivery, email or fax at least three court days before the deposition, and makes all arrangements and pays all expenses incurred for the appearance.
Labor Code § 5710 provides that depositions in workers' compensation proceedings are "to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ...." The Workers' Compensation Appeals Board has recognized that remote depositions are allowed in workers' compensation proceedings.
Note that although the attorneys and other individuals, such as an employer representative, may appear at a deposition remotely, a party deponent may not. Code of Civil Procedure § 2025.310(a) states "any person other than the deponent may attend" a deposition remotely (emphasis added). Moreover, § 2025.310(b) states, "A party deponent shall appear at the deposition in person and be in the presence of the deposition officer."
Similarly, California Rules of Court, rule 3.1010(c) states, "A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer." Rule 3.1010(d), in contrast, states, "A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party." So, although the rules require party deponents (that is, injured workers or employers) to appear at a deposition in person with a court reporter, a nonparty deponent (for example, a doctor or co-worker) may appear remotely with a court order.
On April 6, 2020, however, the Judicial Council of California adopted emergency rules in response to the COVID-19 pandemic. Emergency Rule 11 states, "Notwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition." So, pending further notice, both party and nonparty deponents may choose not to appear at a deposition in the presence of a court reporter.
Obviously, there are many good reasons for attorneys to be physically present during depositions –– they can observe the deponent's demeanor, or present him or her with physical evidence, such as a medical report, to challenge the deponent's testimony. But at present, these considerations should yield to public safety. Remote depositions must be considered for the foreseeable future in order to protect the injured worker, the attorneys and the community as a whole.
For a full discussion of depositions in the California workers compensation system, see "Sullivan on Comp" Section 14.12 Depositions.
- Simmons v. Just Wingin' It, Inc. (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.
- The emergency rules related to COVID-19 are available at https://www.courts.ca.gov/documents/appendix-i.pdf.
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