When the coronavirus pandemic began, California quickly issued a shelter-in-place order, which took effect on March 19th. Soon after, the state also passed temporary legislation which allowed legal proceedings, such as depositions, to continue remotely. By granting these permissions, lawmakers were able to prevent the justice system from grinding to a halt. Now, recent legislation (S.B. 1146) has made some of these changes permanent.
In this article, we’re going to review the previous regulations on remote depositions and explain the changes made by the new legislation.
Combating the Obstacles of Coronavirus
Prior to the pandemic, remote depositions were limited by the California Code of Civil Procedure. According to CCP 2025.310.b, court reporters must be present for the depositions of parties in a case. The code only allowed court reporters to remotely depose non-party witnesses. On March 27, Governor Newsom issued an executive order suspending this rule, and authorizing reporters to remotely depose parties and non-parties alike. The order was broadly embraced and viewed as a positive modernization for the CCP.
The Changes of S.B. 1146
Signed into law on September 18th, S.B. 1146 took effect immediately. The bill included three primary changes: mandatory acceptance for electronic service, permanent allowance for remote depositions, and new provisions for trial delays and postponements. Below, we’ll take an in-depth look at each of these changes:
Electronic Service
Before the passage of the Senate Bill, the law dictated that “a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action.”
Unfortunately, while the law was designed to prevent unauthorized service, it was quickly abused during the height of the pandemic. Coronavirus made it unsafe to gather in-person, which meant that parties in contentious litigation could avoid receiving the documents altogether, simply by refusing to authorize electronic service. To close this loophole, S.B. 1146 states that all parties represented by council must accept the electronic service of a notice or document.
Remote Depositions
Remote depositions are cost-effective, efficient, and facilitate global litigation. With the help of applications like Zoom, Google, and WebEx, they have been occurring for years. Remote depositions were previously limited by section 2025.310 of the Code, which stated that a party deponent had to “appear in person and be in the presence of a deposition officer.’’
By contrast, the new amendment allows that “[a]t 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.” This seemingly minor change will likely prove critical to the future of remote litigation.
Postponement Procedures
The final change in S.B. 1146 addresses the growing problem of postponements and delays. Under the new law, if a trial date is postponed, this automatically extends any deadlines that have not already passed as of March 19, 2020. The rule is “applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter.”
By providing these extensions, both parties gain more time and flexibility to advance their case. Until the state of emergency is over, applicable discovery deadlines will be extended for the same length of time as the continuance or postponement of the trial date.
Final Thoughts
Thanks for reading! Here at First Legal, we’re optimistic about the possibilities that accompany this shift toward accessible, remote legal proceedings. If you enjoyed this article, let us know in the comments, and feel free to share it on social media. Finally, when you plan your next deposition, don’t forget to take advantage of our plentiful deposition tools, including virtual exhibit management, remote court reporting, and video conferencing!
