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.
Previously, under former Code of Civil Procedure § 2025.310, the availability of remote depositions (i.e., depositions in which the deponent is at a different location than the deposition officer) was extremely limited. The court’s express permission was required to conduct a remote nonparty deposition, and a party depositions could not be conducted with a remote deposition officer under any circumstances.
On April 6, 2020, however, the Judicial Council of California adopted emergency rules in response to the COVID-19 pandemic. Emergency Rule 11 stated, "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."
Code of Civil Procedure § 2025.310 was amended effective Sept. 18, 2020 to make permanent emergency measures adopted by the Judicial Council to ensure civil litigation can move forward during the COVID-19 pandemic.
Code of Civil Procedure § 2025.310(a) states, "At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition." Subsection (b) adds, "Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent."
In order to take a deposition remotely, notice is still required. 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.
For a full discussion of depositions in the California workers compensation system, see "Sullivan on Comp" Section 14.12 Depositions.
- The emergency rules related to COVID-19 are available at https://www.courts.ca.gov/documents/appendix-i.pdf.
- Simmons v. Just Wingin' It, Inc. (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.
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