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In California, video depositions are governed by the California Code of Civil Procedure (CCP), specifically sections 2025.330 and 2025.620, which outline the procedures for recording and using video depositions in court.

Rule 2.1040. Electronic recordings presented or offered into evidence

(a) Electronic recordings of deposition or other prior testimony

(1) Before a party may present or offer into evidence an electronic sound or sound-and-video recording of deposition or other prior testimony, the party must lodge a transcript of the deposition or prior testimony with the court. At the time the recording is played, the party must identify on the record the page and line numbers where the testimony presented or offered appears in the transcript.

(2) Except as provided in (3), at the time the presentation of evidence closes or within five days after the recording in (1) is presented or offered into evidence, whichever is later, the party presenting or offering the recording into evidence must serve and file a copy of the transcript cover showing the witness name and a copy of the pages of the transcript where the testimony presented or offered appears. The transcript pages must be marked to identify the testimony that was presented or offered into evidence.

(3) If the court reporter takes down the content of all portions of the recording in (1) that were presented or offered into evidence, the party offering or presenting the recording is not required to provide a transcript of that recording under (2).

(Subd (a) adopted effective July 1, 2011.)

(b) Other electronic recordings

(1) Except as provided in (2) and (3), before a party may present or offer into evidence any electronic sound or sound-and-video recording not covered under (a), the party must provide to the court and to opposing parties a transcript of the electronic recording and provide opposing parties with a duplicate of the electronic recording, as defined in Evidence Code section 260. The transcript may be prepared by the party presenting or offering the recording into evidence; a certified transcript is not required.

(2) For good cause, the trial judge may permit the party to provide the transcript or the duplicate recording at the time the presentation of evidence closes or within five days after the recording is presented or offered into evidence, whichever is later.

(3) No transcript is required to be provided under (1):

(A) In proceedings that are uncontested or in which the responding party does not appear, unless otherwise ordered by the trial judge;

(B) If the parties stipulate in writing or on the record that the sound portion of a sound-and-video recording does not contain any words that are relevant to the issues in the case; or

(C) If, for good cause, the trial judge orders that a transcript is not required.

(Subd (b) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(c) Clerk’s duties

An electronic recording provided to the court under this rule must be marked for identification. A transcript provided under (a)(2) or (b)(1) must be filed by the clerk.

(Subd (c) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(d) Reporting by court reporter

Unless otherwise ordered by the trial judge, the court reporter need not take down the content of an electronic recording that is presented or offered into evidence.

Rule 3.1010. Oral depositions by telephone, videoconference, or other remote electronic means

(a) Taking depositions

Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Notice is served with the notice of deposition or the subpoena;

(2) 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;

(3) 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.

(Subd (a) amended effective January 1, 2022.)

(b) Appearing and participating in depositions

Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided:

(1) Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;

(2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

(Subd (b) amended effective January 1, 2022; previously amended effective January 1, 2007, and January 1, 2016.)

(c) Deponent’s appearance

A deponent must appear as required by statute or as agreed to by the parties and deponent.

(Subd (c) amended effective January 1, 2022.)

(d) Court orders

On motion by any person, the court in a specific action may make such other orders as it deems appropriate.

Cal. Pen. Code § 1345

The deposition, or a certified copy of it, may be read in evidence, or if the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question or answer contained in the deposition or video-recording as if the witness had been examined orally in court.

California Code, Code of Civil Procedure – CCP § 2025.620

Current as of January 01, 2023 | Updated by FindLaw Staff

At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.

(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.

(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

(1) The deponent resides more than 150 miles from the place of the trial or other hearing.

(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:

(A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.

(B) Disqualified from testifying.

(C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity.

(D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.

(E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.

(3) Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

(d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.

(e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.

(f) Substitution of parties does not affect the right to use depositions previously taken.

(g) When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.

Cal. Code Civ. Proc. § 2025.330

Section 2025.330 – Taking testimony
(a) The deposition officer shall put the deponent under oath or affirmation.
(b) Unless the parties agree or the court orders otherwise, the testimony, as well as any stated objections, shall be taken stenographically. If taken stenographically, it shall be by a person certified pursuant to Article 3 (commencing with Section 8020) of Chapter 13 of Division 3 of the Business and Professions Code.
(c) The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. Any other party, at that party’s expense, may make an audio or video record of the deposition, provided that the other party promptly, and in no event less than three calendar days before the date for which the deposition is scheduled, serves a written notice of this intention to make an audio or video record of the deposition testimony on the party or attorney who noticed the deposition, on all other parties or attorneys on whom the deposition notice was served under Section 2025.240, and on any deponent whose attendance is being compelled by a deposition subpoena under Chapter 6 (commencing with Section 2020.010). If this notice is given three calendar days before the deposition date, it shall be made by personal service under Section 1011.
(d) Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.
(e) In lieu of participating in the oral examination, parties may transmit written questions in a sealed envelope to the party taking the deposition for delivery to the deposition officer, who shall unseal the envelope and propound them to the deponent after the oral examination has been completed. Ca. Civ. Proc. Code § 2025.330

Video Deposition Rules to Follow

During depositions, witnesses provide testimony and are cross-examined during the discovery phase before a case goes to trial. In a video deposition, an audiovisual recording is part of the official record, alongside a transcript produced by a professional court reporter who captures all spoken words in text.

While depositions are structured as part of the research leading to the big event—the trial—in reality, they’re the one-and-only incidence of testimony for most witnesses. According to a study by the American Judges Association, 97% of civil cases end outside of the courtroom, either in dismissal, abandonment, or most commonly, settlement. (1)

With the accessibility of recording technology and the import of depositions, video recording is a wise choice—so let’s look at the video deposition rules you need to be aware of.

Video Depositions under the Federal Rules of Civil Procedure

In the United States, civil cases in federal district courts operate under the Federal Rules of Civil Procedure. There are two rules specific to depositions and their use in court:

Rule 30, Depositions by Oral Examination

Rule 30 covers how depositions are scheduled and taken. Regulations specific to video depositions include:

  • The deposing attorney must indicate the recording method in the notice of deposition (1)
  • Unless the court indicates otherwise, audiovisual recording is an approved method
  • The deposing party is responsible for covering the cost of the recording
  • Any party can arrange and pay for alternate video recording with notice to all parties

To be used as an official record of the proceeding, the court reporter in attendance must:

  • Make a formal introductory statement at the start of each unit of recording (2)
  • Complete the oath or affirmation to the deponent on camera
  • Make a closing statement confirming the deposition’s end

Additionally, Rule 30 states that the “deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques”—so no filters, Photoshopping, or other alteration of the original.

Rule 32, Using Depositions in Legal Proceedings

While most civil cases end in negotiated settlements, those that make it to court look to Rule 32 for how depositions are introduced and used at trial. Specific to video depositions, note:

  • If deposition testimony is introduced at trial, any method of recording can be shown (3)
  • If the format is other transcribed text, a deposition transcript must accompany the recording
  • If the testimony is used in a jury trial, and a nonstenographic form (video or audio) is available, any party can order it shown (unless the testimony is used for impeachment)

State Rules of Civil Procedure

Each state follows its own court procedural rules, with 35 having adopted the use of the Federal Rules of Civil Procedure either wholly or with very minimal alteration. (4) The 15 remaining states may have additional regulations that apply more specific guidelines, such as the notification and use of video depositions.

For instance, the California State Bar requires deposing attorneys to state whether they reserve the right to present the recording at trial in the original notice of deposition. (5)

Can You Object to a Video Deposition?

In short—no, not effectively. If a witness, expert witness, or client simply dislikes being videotaped, it doesn’t outweigh the usefulness of a video recording in the eyes of the legal system. A video recording of a deposition is considered the right of any party to a lawsuit.

However, if the deposition notice didn’t indicate that the proceeding would be recorded, then the deposing attorney did not comply with federal Rule 30 (which states they must indicate recording method in the notice of deposition). (2)

In this case, if a videographer shows up, the deponent or their attorney may refuse to allow the recording. If the deposing attorney pushes back, the objecting party can move to terminate the proceeding on the grounds that it’s being conducted in bad faith under Rule 30(d)(3). (2)

The Difference Between a Video and Video Conference Deposition

Remote depositions are common these days but still fall under the rules of in-person legal proceedings—you can’t simply click the “record” button on a video conference.

Essentially, a video conference is a remote deposition, but a video deposition is when a legal videographer captures a professional recording of the proceeding. These videos can be done for both remote or in-person depositions.

U.S. Legal Support: Video Depositions Done Right

Video depositions are useful, common, and allowable under state and Federal Rules of Civil Procedure. There are specific guidelines on how the recording must begin and end, the on-camera swearing-in of the deponent, and providing advance notice that videography will be employed.

Be sure you’re familiar with any specific regulations in your state and know your rights when the opposing counsel deposes your client or witness.

Looking for more information or help in scheduling or preparing for a video deposition?

U.S. Legal Support is an established, nationwide provider serving lawyers and law firms of all types and sizes. We connect you to a network of 5,000+ court reporters and also offer record retrieval, interpreting and translation services, and litigation consulting.

Reach out today to discuss your video deposition and other legal support services. 

 

Sources: 

  1. Brown & Charbonneau, LLP. What Factors Make It Harder To Settle A Civil Case? https://bc-llp.com/factors-make-harder-settle-civil-case/
  2. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
  3. Cornell Law School. Rule 32. Using Depositions in Court Proceedings. https://www.law.cornell.edu/rules/frcp/rule_32
  4. USLegal. Rules of Civil Procedure. https://civilprocedure.uslegal.com/rules-of-civil-procedure/
  5. Sacramento County Public Law Library. Discovery Depositions. https://saclaw.org/wp-content/uploads/sbs-discovery-depositions.pdf
  6. sourced

 

https://www.ocbar.org/Portals/0/pdf/covid/webinar_042220_handout.pdf

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