States Weighing Rule Changes for Depositions

Esquire Deposition Solutions, LLC

Esquire Deposition Solutions, LLC

Summer is over and court administrators are back at work, churning out proposals for streamlining litigation and increasing the constructive use of remote technologies to handle judicial business. This blog post identifies four state courts that recently proposed new rules affecting, either directly or indirectly, the way depositions are conducted in their jurisdictions.

No More Online Gum-Chewing

Minnesota courts will no longer tolerate in virtual proceedings lawyers and parties who look like they just crawled out of bed. Effective Jan. 1, 2024, lawyers and parties in Minnesota courts must abide by new courtroom decorum rules regarding their appearance and behavior during remote proceedings.

Last year, Minnesota adopted the oneCourtMN Hearings Initiative Policy (PDF), a case management initiative that assigned every type of case a presumptive format — either “in person” or “remote” — that cannot be changed unless the trial court determines that exceptional circumstances exist to make the change. Under the new policy, remote hearings are the default format for so much of Minnesota’s judicial business.

New Rule 2.01 (Behavior and Ceremony in General) dictates that persons involved in remote hearings will look and behave as if they are in a traditional, physical courtroom.

“Dignity and solemnity shall be maintained in the courtroom whether in person or using remote technology,” the rule provides.

Appropriate courtroom clothing is required. Hats and head coverings are not permitted, except for religious or medical reasons.

The consumption of food or beverages, with the exception of water (by permission of the trial judge), is off-limits. Now outlawed: gum-chewing, smoking, vaping, audible noises, reading the newspaper or smartphone scrolling, and any other “distracting activity” while remote court is in session.

The new rule also prescribes how lawyers and parties shall position themselves and behave while on camera. “While using remote technology, attorneys, parties, participants, and observers shall remain in a stationary location in front of the device camera, mute their microphone when not speaking, and not engage in distracting activities,” Rule 2.01 provides.

The Minnesota rules do not explicitly apply to remote depositions. However, in practice, it would seem unlikely that either lawyers or judges will permit a less-decorous approach to deposition behavior than that demanded by the new remote hearing rules. Depositions are serious proceedings where professionalism and decorum are expected.

Electronic Delivery of Deposition Transcripts

The Indiana Supreme Court is considering a court rule revision that would allow court reporters to deliver deposition transcripts electronically if the parties agree.

An amended Trial Rule 30(F) would, if adopted, eliminate the current requirement that deposition transcripts be delivered by sealed hard copy.

New language in Trial Rule 30(F) would provide:

If each party participating in the deposition agrees to the original deposition being certified electronically, the officer shall send the electronic certified original transcript endorsed with the title of the action and marked “Original Deposition of (here insert name of witness)” and shall promptly electronically deliver it to the party taking the deposition.

A public comment period on the proposed rule revision closed Aug. 3, 2023.

Ohio: Depositions Limited to Seven Hours

In Ohio, the state supreme court is weighing a change to its court rules that would for the first time place an explicit limit on the length of depositions.

If adopted, revised Ohio Rule of Civil Procedure 30 would provide that “a deposition is limited to one day of seven hours.” The revised rule would align Ohio courts with federal practice as well as practice in a majority of other states. The seven-hour time limit would be subject to change by court order or stipulation among the parties.

Under the proposed rule revision, a trial court must allow additional deposition time “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”

Florida Retools “Apex Doctrine”

Finally, in Florida, the state’s high court is considering changes to case management procedures calling for new rules on pretrial discovery, including deposition practice. With guidance from a public comment period set to expire Oct. 2, the Florida Supreme Court will soon adopt what it calls “significant changes to Florida’s pretrial discovery processes.”

The court is considering new case management rules that would make permanent emergency pretrial discovery processes implemented during the COVID-19 pandemic, or adopting a new set of rules recently recommended by a committee of litigation experts. Both courses of action would allow trial courts to segment civil matters into “complex,” “streamlined,” or “general” litigation categories – with different pretrial discovery deadlines for each category.

The Florida high court is also weighing a change to the “apex deposition” rule, a state-law doctrine that limits the ability of litigators to depose high-level corporate executives. The “apex doctrine” in Florida requires the party seeking to depose a corporate executive to show that the executive possesses unique knowledge not discoverable using other means. (Georgia recently discarded its apex deposition rule.)

The rules revision processes underway in the state courts mentioned above highlight the need for heightened vigilance among litigators. Court rules are changing almost as quickly as technology. While many trial lawyers are actively involved in updating their state’s procedural rules to fit modern technology, a significant number of others may not be monitoring their state high courts and legislatures as closely as they should. Now is the time to check in with relevant state bar committees and court websites to make sure that the changes that are surely coming will have the benefit of everyone’s experience and expertise.

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