From Navigating COVID-19
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Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order in March 2020 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 was lifted in January 2021, maintaining social distancing was deemed 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 (that is, depositions in which the deponent is at a different location from the deposition officer) was extremely limited. The court’s express permission was required to conduct a remote deposition with someone not party to the case, and a deposition could not be conducted remotely with a party to the case 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 [California Rules of Court] 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." CCP 2025.310(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. But each party so appearing must pay all expenses incurred by it or properly allocated to it;
- Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without 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.
California Rules of Court rule 3.1010(b) allows any party, other than the deponent or attorney of record, to appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:
- Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition.
- The appearing party makes all arrangements and pays all expenses incurred for the appearance.
A deponent must appear as required by statute or as agreed to by the parties and deponent. Also, the court may make such orders as it deems appropriate.
Labor Code § 5710 directs 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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