Frequently Asked Questions Regarding

Remote Video Depositions

Under the Texas Rules of Civil Procedure

Does Texas allow for depositions by video conference in the absence of a stipulation?

Yes. Rule 199.1 (b) allows a party to take an oral deposition by remote means if that party give reasonable prior written notice. (Cited Texas Rules of Civil Procedure are reprinted at the end of these Frequently Asked Questions.)

Before whom may a remote video deposition taken?

Under Rule 199.1 (a), a deposition may be taken before “any officer authorized by law to take depositions.” The Rules do not directly identify such officers. However, it is generally accepted that a person authorized to take oaths may also take depositions.

Texas Gov’t Code §§602.002-004 allows oaths to be administered by various public officers, including notaries public.

What are the location requirements for the presiding officer of a remote video deposition?

Rule 199.1(b), applicable to remote electronic depositions, allows two possible locations for the presiding officer: (i) the location of the witness or (ii) the location of the party noticing the deposition. However, as a condition of (ii), the witness must be placed under oath by a person who is both present with the witness and is authorized to administer oaths in that jurisdiction.

May a notary who administers the oath to a remote video deposition witness, or acts as a presiding deposition officer, also be associated with counsel for the witness or the deposing party?

Unlike many rules of civil procedure, there does not appear to be any Texas provision expressly prohibiting a notary public who is an employee of a party’s counsel from administering an oath or acting as a deposition officer. At the same time, no provision clearly authorizes such a practice. Counsel wishing to utilize notaries public who are associated with a party should consider using stipulations or other methods of waiving procedural objections. Counsel may also wish to consider using stipulations of oath.

May a notary participate remotely in a deposition?

As noted above, Rule 199.1(b) refers to presence, both with respect to the witness and to the person calling the deposition. At the same time, Texas Gov’t
Code §406.101 et seq. grants broad powers to an “online notary public.” Counsel should examine the possibility of using an online notary public, either in Texas or in another state. Again, counsel should also consider using stipulations or other methods of waiving any procedural objections.

Do Texas rules expressly permit video recording of depositions, in lieu of stenography?

Yes. Rule 199.1 (c) allows recording any deposition by non-stenographic means, subject to certain notice requirements.

Must a “court reporter” or any other stenographer be present during a video deposition recorded by audiovisual means?

No.

Must a written transcript of a remote video deposition be generated in all cases?

Rule 203.6 (a) states that “[A] non-stenographic recording of an oral deposition, or a written transcription of all or a part of such recording, may be used to the same extent as a deposition taken by stenographic means.” There is no indication that any such written transcription must be generated by certified court reporter. See, also, Burr v. Shannon, 593 S.W. 2d 677, 678 (Tex. 1980) (a full-time secretary, who is a notary public, of a party’s attorney can reduce a deposition to writing.) Again, stipulations may be useful in eliminating potential issues.

Rule 203.1(a) states that “[T]he deposition officer must provide the original deposition transcript to the witness for examination and signature.” However, Rule 203.1(c) also provides that the “…requirements of presentation and signature…do not apply: …(3) to non-stenographic recordings of oral depositions.” It should be noted that, under Rule 203.6 (a), the court may, for good cause, require a complete transcript of the deposition recording from a certified court reporter.

Selections From the Texas Rules of Civil Procedure

RULE 199. DEPOSITIONS UPON ORAL EXAMINATION

199.1 Oral Examination; Alternative Methods of Conducting or Recording.

(b) Depositions by telephone or other remote electronic means. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction.

(c) Non-stenographic recording. Any party may cause a deposition upon oral examination to be recorded by other than stenographic means, including videotape recording. The party requesting the non-stenographic recording will be responsible for obtaining a person authorized by law to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. At least five days prior to the deposition, the party must serve on the witness and all parties a notice, either in the notice of deposition or separately, that the deposition will be recorded by other than stenographic means. This notice must state the method of non-stenographic recording to be used and whether the deposition will also be recorded stenographically. Any other party may then serve written notice designating another method of recording in addition to the method specified, at the expense of such other party unless the court orders otherwise.

203.1 Signature and Changes.

(a) Deposition transcript to be provided to witness. The deposition officer must provide the original deposition transcript to the witness for examination and signature. If the witness is represented by an attorney at the deposition, the deposition officer must provide the transcript to the attorney instead of the witness.

(c) Exceptions. The requirements of presentation and signature under this subdivision do not apply:

(3) to non-stenographic recordings of oral depositions.

203.6 Use.

(a) Non-stenographic recording; transcription. A non-stenographic recording of an oral deposition, or a written transcription of all or part of such a recording, may be used to the same extent as a deposition taken by stenographic means. However, the court, for good cause shown, may require that the party seeking to use a non-stenographic recording or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. The court reporter’s transcription must be made from the original or a certified copy of the deposition recording. The court reporter must, to the extent applicable, comply with the provisions of this rule, except that the court reporter must deliver the original transcript to the attorney requesting the transcript, and the court reporter’s certificate must include a statement that the transcript is a true record of the non- stenographic recording. The party to whom the court reporter delivers the original transcript must make the transcript available, upon reasonable request, for inspection and copying by the witness or any party.