Frequently Asked Questions Regarding
Remote Video Depositions
Under the North Carolina Rules of Civil Procedure
Does North Carolina allow depositions to be conducted by video conference?
Rule 30(b)(7) allows for depositions by telephone upon court order or by stipulation, (Selections from the Rules cited herein are reprinted at the end of these Frequently Asked Questions.) The Rule does not define “by telephone.” Rule 29, however, grants broad authority to modify discovery procedures by stipulation. Counsel is advised to consider drafting a stipulation to eliminate any question as to the means of communication for attendees who are not co-located.
Before whom may a remote video deposition taken?
Under Rule 28, a deposition within the United States may be taken before a person authorized to administer oaths under North Carolina, federal, or the law of the location of the deponent.
May the presiding officer of the remote video deposition be an employee of, or otherwise, associated with counsel for a party?
Consistent with the rules of many states, North Carolina Rule 28(c) included a disqualification for interest provision. However, unlike most such rules, Rule 28(c) expressly qualifies this provision with “[U]nless the parties agree otherwise by stipulation” in accordance with Rule 29.
Given the broad powers of stipulation granted by Rule 29, counsel may also wish to consider proposing stipulations of oath and even waiver of the presiding officer.
May a presiding officer participate remotely in a deposition?
Neither Rule 28 nor Rule 30 expressly require that the person before whom a deposition is taken be co-located with the witness or with any other person for that matter. As noted, Rule 30 (b) (7) allows for telephonic depositions by stipulation. This would seem to imply that co-location is not required.
However, counsel should be aware that the North Carolina Notary Public Act (Chapter 10B) includes personal presence requirements for certain notarial acts.
Counsel should examine the possibility of using an online notary public in another state or using stipulations or other methods of waiving procedural requirements.
Do NC rules expressly permit video recording of depositions, in lieu of stenography?
Yes. Rule 30(b)(4) allows recording a deposition by sound and visual means. subject to certain notice requirements.
Must a remote video deposition also be recorded simultaneously by stenographic means?
There is no requirement for a simultaneous stenographic recording. However, a party or the deponent may elect to require a simultaneous stenographic recording. (Rule 30 (b) (4))
Must a written transcript of a remote video deposition be generated in all cases?
There is no requirement for a transcription of a remote video deposition. A party may however elect to require a transcription. (Rule 30 (c)).
Are there certification requirements for a video deposition ?
Under Rule 30 (f) (1), the person administering the oath to the deponent is required to certify that the deposition is a true record. Again, stipulations for a different procedure should be explored.
Rule 28. Persons before whom depositions may be taken.
(a) Within the United States. – Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this State, of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
(c) Disqualification for interest. – Unless the parties agree otherwise by stipulation as provided in Rule 29, no deposition shall be taken before a person who is any of the following:
a. A relative, employee, or attorney of any of the parties;
b. A relative or employee of an attorney of the parties;
c. Financially interested in the action; or
d. An independent contractor if the contractor or the contractor’s principal is under a blanket contract for the court reporting services with an attorney of the parties, party to the action, or party having a financial interest in the action. Notwithstanding the disqualification under this rule, the party desiring to take the deposition under a stipulation shall disclose the disqualification in writing in a Rule 30(b) notice of deposition and shall inform all parties to the litigation on the record of the existence of the disqualification under this rule and of the proposed stipulation waiving the disqualification. Any party opposing the proposed stipulation as provided in the notice of deposition shall give timely written notice of his or her opposition to all parties.
For the purposes of this rule, a blanket contract means a contract to perform court reporting services over a fixed period of time or an indefinite period of time, rather than on a case by case basis, or any other contractual arrangement which compels, guarantees, regulates, or controls the use of particular court reporting services in future cases.
Notwithstanding any other provision of law, a person is prohibited from taking a deposition under any contractual agreement that requires transmission of the original transcript without the transcript having been certified as provided in Rule 30(f) by the person before whom the deposition was taken
Notwithstanding the provisions of this subsection, a person otherwise disqualified from taking a deposition under this subsection may take a deposition provided that the deposition is taken by videotape in compliance with Rule 30(b)(4) and Rule 30(f), and the notice for the taking of the deposition states the name of the person before whom the deposition will be taken and that person’s relationship, if any, to a party or a party’s attorney, provided that the deposition is also recorded by stenographic means by a nondisqualified person.
Rule 29 Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may by written stipulation (i) provide that depositions 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 (ii) modify the procedures provided by these rules for other methods of discovery.
Rule 30 Depositions upon oral examination
(b) (4) Unless the court orders otherwise, testimony at a deposition may be recorded by sound recording, sound-and-visual, or stenographic means. If the testimony is to be taken by other means in addition to or in lieu of stenographic means, the notice shall state the methods by which it shall be taken and shall state whether a stenographer will be present at the deposition. In the case of a deposition taken by stenographic means, the party that provides for the stenographer shall provide for the transcribing of the testimony taken. If the deposition is by sound recording only, the party noticing the deposition shall provide for the transcribing of the testimony taken. If the deposition is by sound-and-visual means, the appearance or demeanor of deponents or attorneys shall not be distorted through camera techniques. Regardless of the method stated in the notice, any party or the deponent may have the testimony recorded by stenographic means.
(b) (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1) and 45(d), a deposition taken by telephone is taken in the district and the place where the deponent is to answer questions propounded to him.
(e) Submission to deponent; changes; signing. – The sound-and-visual recording, or the transcript of it, if any, the transcript of the sound recording, or the transcript of a deposition taken by stenographic means, shall be submitted to the deponent for examination and shall be reviewed by the deponent, unless such examination and review are waived by the deponent and by the parties. If there are changes in form or substance, the deponent shall sign a statement reciting such changes and the reasons given by the deponent for making them. The person administering the oath shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent. The certificate shall then be signed by the deponent, unless the parties by stipulation waive the signing or the deponent is ill or cannot be found or refuses to sign. If the certificate is not signed by the deponent within 30 days of its submission to him, the person before whom the deposition was taken shall sign the certificate and state on the certificate the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though the certificate were signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification by person administering the oath; exhibits; copies. –
(1) The person administering the oath shall certify that the deponent was duly sworn by him and that the deposition is a true record of the testimony given by the deponent. This certificate shall be in writing and accompany the sound-and-visual or sound recording or transcript of the deposition. He shall then place the deposition in an envelope or package endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall personally deliver it or mail it by first class mail to the party taking the deposition or his attorney who shall preserve it as the court’s copy.