Frequently Asked Questions Regarding

Video Depositions

Under Maryland Rules Title 2 – Civil Procedure –

Circuit Court

(“Maryland Rules”)

May a deposition be conducted by video conference?

Maryland Rule 2-418 allows deposition by telephone but requires either a court order or a stipulation of the parties. (Selections from the rules are reprinted at the end of these Frequently Asked Questions.)

Counsel desiring to conduct a remote video deposition should consider using Maryland Rule 2-401(g), which grants the parties broad powers to stipulate as to discovery procedures.

Before whom must a remote video deposition be conducted?

For depositions within the United States, the rule applicable to all forms of depositions refers to any person authorized to administer an oath. See Rule 2-414. This rule also contains a disqualification for interest provision, which includes employees of attorneys in the action.

Counsel should again consider utilizing the broad powers of stipulation granted by Rule 2-401 (g). This rule provides that, by stipulation, depositions may be taken “before any person.”

Must the deposition officer be co-located with the witness?

The Maryland rules do not set forth a co-location requirement. The rule for telephonic depositions expressly states that the deposition officer may administer the oath by telephone.

Do Maryland rules allow for video recording of depositions?

Yes. Maryland Rule 2-416 expressly allows recording any deposition by electronic audio-video means.

Must a simultaneous stenographic record be made of a deposition recorded by video?

There is no requirement for a simultaneous stenographic record.

Must a written transcript of a deposition recorded by video also be generated?

Maryland Rule 2-415 (a) requires that deposition testimony also be transcribed, unless the parties agree, or the court orders, otherwise.

Does Maryland impose special requirements on the person operating the video recording device?

Yes. See Maryland Rule 2-416, and especially 2-416 (f) for detailed procedural requirements.

Is there a certification requirement for the video recording?

Under Maryland Rule 2-416 (h), the deposition officer must review the video recording and sign a certificate that the recording is correct and complete record of the deponent’s testimony.

Selections from Maryland Rules Title 2- Civil Procedure – Circuit Court

RULE 2-401. GENERAL PROVISIONS GOVERNING DISCOVERY

(g) Stipulations Regarding Discovery Procedure. Unless the court orders otherwise, the parties by written stipulation may (1) provide that a deposition may be taken before any person, at any time or place, upon any notice, and in any manner and, when so taken, may be used like other depositions and (2) modify the procedures provided by these rules for other methods of discovery, except that the parties may not modify any discovery procedure if the effect of the modification would be to impair or delay a scheduled court proceeding or conference or delay the time specified in a court order for filing a motion or other paper.

RULE 2-414. DEPOSITION–OFFICER BEFORE WHOM TAKEN

(a) In This State. In this State, a deposition shall be taken before any person authorized to administer an oath.

(b) In Other States. In any other state of the United States or in a territory, district, or possession of the United States, a deposition shall be taken before any person authorized to administer an oath by the laws of the United States or by the laws of the place where the deposition is taken or before any person appointed by the court in which the action is pending. The person appointed has the power to administer an oath and take testimony.

(c) In Foreign Countries. In a foreign country, a deposition may be taken (1) on notice before any person authorized to administer an oath in the place in which the deposition is taken, either by the laws of that place or by the laws of the United States, or (2) before any person commissioned by the court, which person has the power by virtue of the commission to administer an oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on motion and notice and on terms that are just and appropriate. It is not necessary to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient, and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in (here name the country).” Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.

(d) Disqualification for Interest. A deposition shall not be taken before a person who is a relative or employee or attorney of a party, or is a relative or employee of an attorney of a party, or is financially interested in the action.

(e) Objections. Any objection to the taking of a deposition because of the disqualification of the officer is waived unless made before the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

RULE 2-415. DEPOSITION–PROCEDURE

(a) Oath and Record of Testimony. The deponent shall be put on oath by the officer before whom a deposition is taken, and the testimony of the deponent shall be recorded by the officer or by someone acting under the direction and in the presence of the officer. The testimony shall be recorded stenographically or, pursuant to Rule 2-416, by electronic audio or audio-video recording. The testimony shall also be transcribed unless the parties agree otherwise or unless the court orders otherwise to avoid expense, hardship, or injustice. The court may order one or more of the parties to pay the cost of transcription.

(d) Signature and Changes. Unless changes and signing are waived by the deponent and the parties, the officer shall submit the transcript to the deponent, accompanied by a notice in substantially the following form:

[Caption of case]                                            NOTICE TO [name of deponent]

The enclosed transcript of your deposition in the above-captioned case is submitted to you on [date of submission of the transcript to the deponent] for your signature and any corrections or other changes you wish to make. All corrections and other changes will become part of your sworn testimony.

After you have read the transcript, sign it and, if you are making changes, attach to the transcript a separate correction sheet stating the changes and the reason why each change is being made. Return the signed transcript and any correction sheet to [name and address of officer before whom the deposition was taken] no later than 30 days after the date stated above.

If you fail to return the signed transcript and any correction sheet within the time allowed, the transcript may be used as if signed by you. See Rules 2-415 and 2-501 of the Maryland Rules of Procedure.

Within 30 days after the date the officer mails or otherwise submits the transcript to the deponent, the deponent shall (1) sign the transcript and (2) note any changes to the form or substance of the testimony in the transcript on a separate correction sheet, stating the reason why each change is being made. The officer promptly shall serve a copy of the correction sheet on the parties and attach the correction sheet to the transcript. The changes contained on the correction sheet become part of the transcript. If the deponent does not timely sign the transcript, the officer shall

sign the transcript, certifying the date that the transcript was submitted to the deponent with the notice required by this section and that the transcript was not signed and returned within the time allowed. The transcript may then be used as if signed by the deponent, unless the court finds, on a motion to suppress under section (k) of this Rule, that the reason for the failure to sign requires rejection of all or part of the transcript.

(e) Certification and Notice. The officer shall attach to the transcript a certificate that the deponent was duly sworn and that the transcript is a true record of the testimony given. A transcript prepared from a certified electronic audio or audio-video recording may be certified by any person qualified to act as a deposition officer. The officer shall then securely seal the transcript in an envelope endorsed with the title of the action and marked “Deposition of (here insert name of deponent).”

(k) Motions to Suppress. An objection to the manner in which testimony is transcribed, recorded by electronic audio or audio-video means, or to the manner in which a transcript is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer is waived unless a motion to suppress all or part of the deposition is made promptly after the defect is or with due diligence might have been ascertained. In ruling on a motion to suppress, the court may grant leave to any party to depose the deponent further on terms and conditions the court deems appropriate.

RULE 2-416. DEPOSITION–AUDIO AND AUDIO-VIDEO RECORDINGS

(a) Permitted. Any deposition may be recorded by electronic audio or audio-video means without a stenographic record, but a party may cause a stenographic record of the deposition to be made at the party’s own expense. Except as otherwise provided by this Rule, the rules of this chapter apply to videotape and audiotape depositions.

(b) Deferral. On motion of a party made prior to the deposition, the court may order that an electronic audio or audio-video deposition intended for use at trial be postponed or begun subject to being continued, on such terms as are just, if the court finds that the deposition is to be taken before the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent or other means, for cross-examination of the deponent.

(c) Physical Arrangements The area to be used for recording testimony shall be suitable in size, have adequate lighting, and be reasonably quiet. The physical arrangements shall not be unduly suggestive or otherwise prejudicial.

(d) Operator.The operator of the recording equipment shall be competent to set up, operate, and monitor the equipment in accordance with this Rule. The operator may be an employee of the attorney taking the deposition unless the operator is also the officer before whom the deposition is being taken.

(e) Operation of the Equipment. The operator shall not distort the appearance or demeanor of participants in the deposition by the use of camera or sound recording techniques.

(f) Procedure. The deposition shall begin by the operator stating on camera or on the electronic audio or audio-video recording: (1) the operator’s name and address, (2) the name and address of the operator’s employer, (3) the date, time, and place of the deposition, (4) the caption of the case, (5) the name of the deponent, and (6) the name of the party giving notice of the deposition. The officer before whom the deposition is taken shall identify himself or herself and swear the deponent on camera or on the electronic audio or audio-video recording. At the conclusion of the deposition, the operator shall state on camera or on the electronic audio or audio-video recording that the deposition is concluded. When more than one tape, disk or similar electronic data unit of recording is used, the operator shall announce the end of each unit and the beginning of the next unit of audio or audio-video recording. A deposition recorded under this subsection shall be timed by a clock or indicator that shall show on camera or on the recording whenever possible each hour, minute, and second of the deposition.

(g) Objections.The officer shall keep a log of all objections made during the deposition and shall reference them to the time shown on the clock on camera or to the indicator on the audio or audio-video recording. Evidence objected to shall be taken subject to the objection. A party intending to offer a deposition recorded by audio or audio-video means in evidence shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time to allow for objections to be made and acted upon before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the electronic audio or audio-video recording before the trial or hearing. The court may permit further designations and objections as justice may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the electronic audio or audio-video recording be made or that the person playing the recording at trial suppress the objectionable portions of the recording. In no event, however, shall the original of the recording be affected by any editing process.

(h) Certification.After the deposition has been taken, the officer shall review the electronic audio or video recording promptly and attach to it a certificate that the recording is a correct and complete record of the testimony given by the deponent.

(i) Custody. The attorney for the party taking the deposition or any other person designated by the court or agreed to by the parties represented at the deposition shall take custody of the electronic audio or audio-video recording and be responsible for its safeguarding, permit its viewing or hearing by a party or the deponent, and provide a copy of the electronic audio-video recording or its audio portion or of the audiotape, upon the request and at the cost of a party or the deponent. An electronic audio or audio-video recording offered or admitted in evidence at a trial or hearing shall be marked and retained as an exhibit.

RULE 2-418. DEPOSITION–BY TELEPHONE

The parties may stipulate in writing, or the court on motion may order, that a deposition be taken by telephone. The officer before whom the deposition is taken may administer the oath by

telephone. For the purpose of these rules, a deposition taken by telephone is taken at the place where the deponent answers the questions.