On deposition rule, advisory committee recommends ‘noticer’s choice’

While some would have preferred to see a rule making either in-person or remote depositions the default, many attorneys — at least on the plaintiffs’ side — approve of the Standing Advisory Committee on the Rules of Civil Procedure’s decision to reverse course and recommend that the party noticing a deposition should get to choose how that deposition is conducted under Mass. R. Civ. P. 30.

The noticer’s choice could still be revised by court order “for good cause shown,” under the proposed rule.

As members of the bar know, the use of videoconferencing technology to conduct depositions has grown exponentially, initially out of necessity when the COVID-19 pandemic rendered in-person depositions impossible, or at least unadvisable.

“It’s been a lifesaver, to be honest.”

— Milton lawyer Dino M. Colucci on remote depositions

But as the pandemic relented, the question became the degree to which the Supreme Judicial Court’s updated order regarding remote depositions should become a permanent part of the litigation landscape. That order, which was issued and took effect on Oct. 23, 2020, permitted litigants to take remote depositions as a matter of right.

After its initial review of the issue, the advisory committee last year landed on a recommendation that in-person depositions should be the default rule, but that parties could agree to a remote deposition, or a court could grant a motion ordering a remote deposition absent agreement.

But when the committee put that rule out for comment, it heard loud and clear that many lawyers were not so eager to return to the pre-pandemic way of doing things. By then, they had seen firsthand the benefits of conducting depositions remotely. They and their clients were wasting less time and money, and their well-being was improving, they told the advisory committee.

For example, the Massachusetts Academy of Trial Attorneys reported in its comments on the initial proposed Rule 30 amendments that the results of an online poll of its membership revealed that “the overwhelming preference was for the default not to be in-person [depositions].”

Still, the feedback was not uniform. Instead, commenters fell into one of three camps, the advisory committee explained as it put a revised Rule 30 back out for comment on Oct. 20.

There were those who supported the committee’s initial recommendation of in-person depositions as the default rule; those who supported remote depositions as the default; and the largest group supporting the “noticer’s choice” approach, according to copies of the comments provided to Lawyers Weekly.

Given that feedback, the advisory committee is now recommending the adoption of a noticer’s choice procedure that enables the party seeking the deposition to decide in the first instance whether the deposition will be taken in person or remotely.

Feedback on “take 2” on the revisions to Rule 30 is due by Dec. 29.

Changing with the times

In the first round of comments on the rule, among the more impassioned pleas to enshrine a preference for remote depositions came from Shepard Law, which engages in personal injury and toxic tort litigation from offices in Boston and Worcester. Many of the practice’s clients suffer from mesothelioma and lung cancer, aggressive and fatal illnesses caused by exposure to asbestos, its letter explained.

The letter detailed the pain and discomfort as well as the financial burden traveling to attend depositions imposes on those clients and their families.

“Our clients are facing an immense physical and emotional battle, and every effort should be made to minimize their discomfort and distress,” the letter stated.

While his office initially took the position that remote depositions should be the default, Michael C. Shepard told Lawyers Weekly that the noticer’s choice option “makes sense.”

Most important is for the profession to stop resisting technology, he said.

“The legal profession has historically lagged behind the business world in adopting technology,” he said. “It’s high time that changed and for the legal profession to be more proactive in adopting technology that benefits everyone and to stop looking at it like it is voodoo or a bogeyman that needs to be avoided.”

Shepard noted that his office had been an early adopter of sorts of Zoom depositions, realizing back in 2017 that it made little sense to fly around the country just to hear in person expert witnesses “parroting” the same information already chronicled in their reports.

“New technology certainly provides for some convenience, but nothing can replace having real conversations with attorneys, and it has become abundantly clear to me that we treat each other more like colleagues when these conversations happen in person.”

— David R. Walsh, MBTA and MassDOT

He reiterated that for many of his clients, in-person depositions can often mean lawyers huddling around their hospital beds or in their homes.

“That is not the way any person wants to spend what little time they have left,” Shepard said.

Shepard said he is always willing to work with defense counsel on compromises to allay some of their concerns with remote depositions. Maybe they will agree to have two lawyers in the room with the witness — just not 20, he said.

He also noted that a lot of mediation is now conducted virtually, as are all or part of trials in some jurisdictions.

“Why should depositions be any different?” he asked.

Lowell attorney Michael D. Molloy said he had done his own informal survey of his fellow members of the bar and found — as the advisory committee and MATA had — that there was “no consensus whatsoever” over what the default rule should be.

Still, he concluded that the noticer’s choice approach is the “best way for the SJC to thwart disagreements ahead of time.”

That echoes a theme that had run through many of the comments the advisory committee received, which noted that, of the options, noticer’s choice would result in the least amount of motion practice.

Molloy added that it struck him that many of the justifications for a move back toward in-person depositions were based on hypothetical, worst-case scenarios. He credited the advisory committee for taking the feedback it had gotten and changing course.

Milton attorney Dino M. Colucci also supports the noticer’s choice rule from a tactical perspective.

“Anything that gives practitioners more choice and more options is always a good thing,” he said.

Colucci said he has not had any problems in being able to perceive a witness’s demeanor over Zoom. That an attorney might have an easier time coaching witnesses may be an “Achilles heel of the Zoom platform,” Colucci acknowledged. But in his experience, instances of a witness being coached by someone off-screen are rare and in no way outweigh the benefits of videoconference depositions.

“It’s been a lifesaver, to be honest,” he said.

The dissenting view

Given that many of his clients are seamen who may be across the country in Seattle or San Diego, if they are even in port at all, one might think that Joseph M. Orlando Jr. would be in favor of a rule embodying a preference for remote depositions.

But the Gloucester maritime attorney said he continues to believe that having Zoom become the default would be “dangerous.”

“I think too many games can be played with videoconferencing,” he said.

The Massachusetts Defense Lawyers Association expressed similar thoughts in its comments favoring a return to in-person depositions.

“I think too many games can be played with videoconferencing.”

— Joseph M. Orlando Jr., Gloucester

“Remote depositions further bear the risk of improper conduct by the witness in relying on out-of-view notes, attorney prompting, posters, teleprompters, tablets, smartphones, in-ear devices while giving sworn testimony,” wrote MDLA President Christine Knipper and board member Chad P. Brouillard, citing a pair of federal court cases, including one in Massachusetts, in which such misconduct had occurred.

The “awful behavior” he has experienced has included “deponents driving an automobile, deponents in various states of undress, as well as (I believe) getting text messages from counsel,” wrote David R. Walsh, an attorney in the general counsel’s office of the MBTA and MassDOT.

While there are compelling reasons for remote depositions in some cases, most of the time it is merely for the convenience of the attorney, which should not carry the day, Walsh stated.

Walsh also bemoaned the potential loss of the chance to do “very important work” after a deposition concludes, when an organic opportunity arises for counsel to have frank, off-the-record conversations, which often move cases toward resolution.

“New technology certainly provides for some convenience, but nothing can replace having real conversations with attorneys, and it has become abundantly clear to me that we treat each other more like colleagues when these conversations happen in person,” he wrote.

More weight on well-being?

At the other end of the spectrum is Tewksbury attorney Kathleen M. O’Donnell. While she believes that noticer’s choice is a better option than going back to in-person depositions, she wishes the default could be remote depositions, given how well they have worked for more than three years.

“Clients are more comfortable, scheduling is easier and not impacted by adverse weather conditions, and it is cost and time efficient,” she said.

O’Donnell added that, especially with lawyer well-being a major concern of the SJC in recent years, she was surprised the court’s advisory committee did not see the connection between that issue and remote depositions.

“Some good things came out of the terrible pandemic,” she said. “We all were forced to use technology in ways we had not done previously. Continued use of that technology is a good thing.”

In O’Donnell’s view, in-person depositions should be limited to situations in which there is a real need for that forum, and there should be a mechanism in which parties can bring that issue before a judge quickly in the rare cases when the attorneys cannot agree on a change from the presumed remote deposition.

Some type of expedited motion practice would be helpful even with a noticer’s choice rule, Hyannis attorney Bruce A. Bierhans said. He noted that having to abide by the Rule 9A process just to figure out how a deposition should happen could “delay the whole process.”

That said, Bierhans said he has not experienced any problems with coming to an agreement with opposing counsel over how depositions should be handled.

The move toward increased use of remote depositions has been a godsend for lawyers like himself and their clients on Cape Cod who might otherwise be facing five to six hours of roundtrip travel time to get into Boston, he said.

Bierhans said he was pleased to learn recently that Plymouth District Court is now doing all its motion hearings on Zoom, absent a party’s request to do them in person, which is a “great time saver for people who have to travel.” Remote depositions provide similar benefits, he suggested.

Bierhans admits that he still has not gotten completely comfortable with sharing documents virtually on a Zoom screen and would rather hold them in his hands.

“Recently, I had a younger opposing lawyer who was kind enough to do the screen sharing for me,” Bierhans said. “There is cooperation. Lawyers on both sides are adapting and learning what we have to learn.”