Coronavirus Solutions Cause Long-Term Changes to Depositions in California

On September 18, 2020, Governor Gavin Newsom (D) signed Senate Bill (“S.B.”) 1146 into law. This act was aimed at amending Sections 1010.6 and 2025.310 of the California Code of Civil Procedure, and to add and repeal Section 599. These sections of Code of Civil Procedure govern discovery deadlines, methods for service, mandatory settlement conferences, and depositions, among other things. The focus of this post, however, is on the changes to the statutes effecting depositions in California.

In response to the coronavirus pandemic, the California Judicial Council adopted 11 emergency rules. According to Chief Justice Tani Cantil-Sakauye, the emergency rules aim to “preserve the rule of law and protect the rights of . . . litigants, . . . and all who seek justice,” and to promote public health during the pandemic. With respect to depositions, Emergency Rule 11 provided in pertinent part that “a party or nonparty deponent, at their election or the election of the deposing party, [was] not required to be present with the deposition officer at the time of the deposition.” This Emergency Rule had a planned sunset “90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.” Practically speaking, Emergency Rule 11 facilitated taking depositions via telephonic or other remote video technology means during the pandemic by temporarily eliminating the need for the court reporter to be present with the witness or deposing party at the time of the deposition.

Setting Emergency Rule 11 aside, California Code of Civil Procedure Section 2025.310 required that a party deponent appear at the deposition in person and be in the presence of the court reporter. In addition, Section 2025.310 required that a non-party deponent appear in person, unless the court found good cause to allowing the non-party deponent to appear telephonically. When Governor Newsom signed S.B. 1146 into law on September 18, 2020, it took elements of the otherwise temporary Emergency Rule 11 and codified them into California’s Discovery Statutes. Specifically, S.B. 1146 deleted the provision in Section 2025.310 that authorized a court to order that a non-party deponent appear by telephone, and instead permits the deponent or the deposing party to have the court reporter attend the deposition by telephone or other remote electronic means. In addition, S.B. 1146 permits any part or attorney of record to be physically present at the deposition at the location of the deponent, or to appear remotely, at their election.

These changes to the law may have long-lasting impacts on the way depositions are conducted in California. Regardless of how or when the pandemic resolves, we very well may see remote depositions become the norm in California.

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