Frequently Asked Questions Regarding

Remote Video Depositions

Under the Virginia Code – Civil Remedies and Procedures and the Rules of the Supreme Court of Virginia (“Virginia Rules”)

Do Virginia rules allow for remote video depositions?

Yes. Virginia has adopted a version of the Uniform Audio-Visual Deposition Act and expressly includes video conferencing within its scope. See Va. Code §8.01-412.2.  The Rules of the Virginia Supreme Court also expressly allow for video conferencing. See Supreme Court Rule  4:7A. (Selections from the statute and rules are reprinted at the end of these Frequently Asked Questions.)

Must a simultaneous stenographic record be made of a remote video deposition?

There is no requirement for a simultaneous stenographic record. See Va.Code §8.01-412.2

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

There is no blanket requirement for a transcription of a remote video deposition. Use of a deposition at trial may trigger a transcript requirement. See Rule 4:7(b) An appeal will require a transcript. See, Rule 4:7A (d)(2)

Before whom must a remote video deposition be conducted?

For depositions within Virginia, the Supreme Court  rule applicable to all forms of depositions refers to “any person authorized by law to administer oaths.” For depositions in other states, the reference is to “any officer authorized to take depositions” where the deponent is located.
Counsel should also consider utilizing the broad powers of stipulation granted by Rule 4:4. This rule provides that, by stipulation, depositions may be taken “before any person.”

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

The Virginia rules do not set forth a co-location requirement.

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

Yes. See Virginia Code §8.01-412.4 for detailed procedural requirements. Most of these procedural requirements are duplicated in the Supreme Court Rules at 4:7A.
Counsel should consider whether Virginia’s relatively unique and detailed statutory provisions may affect the powers of stipulation. For example, the statute requires that the “[T]he oath for witnesses shall be administered on camera.” Since this is a statutory provision, counsel may be limited in utilizing a stipulation for a different method.

Selections from Code of Virginia Title 8.01 Civil Remedies and Procedures

§ 8.01-412.2. Authorization of audio-visual deposition; official record; uses.

Any deposition may be recorded by audio-visual means without a stenographic record. Any party may make, at his own expense, a simultaneous stenographic or audio record of the deposition. Upon request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording.

The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter shall also be deemed an official record of the deposition. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

For purposes of this article, “audio-visual” shall include video conferencing and teleconferencing.

§ 8.01-412.4. Procedure.

The taking of audio-visual depositions shall be in accordance with the rules of the Supreme Court generally applicable to depositions. However, the following procedure shall be observed in recording an audio-visual deposition:

The deposition must begin with an oral or written statement on camera which includes (i) each operator’s name and business address or, if applicable, the identity of the video conferencing or teleconferencing proprietor and locations participating in the video conference or teleconference; (ii) the name and business address of the operator’s employer; (iii) the date, time and place of the deposition; (iv) the caption of the case; (v) the name of the witness; (vi) the party on whose behalf the deposition is being taken; (vii) with respect to video conferencing or teleconferencing, the identities of persons present at the deposition and the location of each such person; and (viii) any stipulations by the parties.

In addition, all counsel present on behalf of any party or witness shall identify themselves on camera. The oath for witnesses shall be administered on camera. If the length of a deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit shall be announced on camera. At the conclusion of a deposition, a statement shall be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.

All objections must be made as in the case of stenographic depositions. In any case where the court orders the audio-visual recording to be edited prior to its use, the original recording shall not be altered but shall be maintained as is.

Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and exhibits shall be filed with the clerk of the court in accordance with the rules of the Supreme Court.

Selections from the Rules of the Supreme Court of Virginia

Rule 4:3. Persons Before Whom Depositions May Be Taken.

(a) Within this Commonwealth. Within this Commonwealth depositions may be taken before any person authorized by law to administer oaths, and if certified by his hand may be received without proof of the signature to such certificate.
(b) Within the United States. In any other State of the United States or within any territory or insular possession subject to the dominion of the United States, depositions may be taken before any officer authorized to take depositions in the jurisdiction wherein the witness may be, or before any commissioner appointed by the Governor of this Commonwealth.

Rule 4:4. Stipulations Regarding Discovery.

Unless the court orders otherwise, the parties may by written stipulation (1) 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 (2) modify the procedures provided by these Rules for other methods of discovery, including discovery of electronically stored information. Stipulations may include agreements with non-party witnesses, consistent with Code § 8.01-420.4. Such stipulations shall be filed with the deposition or other discovery completed pursuant thereto.

Rule 4:5 Depositions Upon Oral Examination

(b) Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization. —

(7) Unless the court orders otherwise, a deposition may be taken by telephone, video conferencing, or teleconferencing. A deposition taken by telephone, video conferencing, or teleconferencing shall be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded to him.

(f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing. — (1) The officer shall prepare an electronic or digitally imaged copy of the deposition transcript, including signatures and any changes as provided in subsection (e) of this Rule, and shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. In a divorce or annulment case, the officer shall then promptly file the electronic or digitally imaged deposition in the office of the clerk, notifying all other parties of such action. In all other cases, the officer shall then lodge the deposition with the attorney for the party who initiated the taking of the deposition, notifying the clerk and all parties of such action. Depositions taken pursuant to this Rule or Rule 4:6 (except depositions taken in divorce and annulment cases) shall not be filed with the clerk until the court so directs, either on its own initiative or upon the request of any party prior to or during the trial. Any such filing shall be made electronically unless otherwise ordered by the judge.

Rule 4:7  Use of Depositions in Court Proceedings


(b) Form of Presentation; Objections to Admissibility. A party may offer deposition testimony pursuant to this Rule in stenographic or nonstenographic form. Except as otherwise directed by the court, if all or part of a deposition is offered, the offering party shall provide the court with a transcript of the portions so offered in either form or in electronic or digitally imaged form. Except as provided in Rule 1:18 and subject to the provisions of subdivision (d)(3) of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Rule 4:7A. Audio-Visual Depositions.

(a) When Depositions May Be Taken by Audio-Visual Means. Any depositions permitted under these Rules may be taken by audio-visual means including, but not limited to, videoconferencing and teleconferencing, as authorized by and when taken in compliance with law.

(b) Procedure. (1) The deposition must begin with an oral or written statement on camera which includes (i) each operator’s name and business address or, if applicable, the identity of the video conferencing or teleconferencing proprietor and locations participating in the video conference or teleconference; (ii) the name and business address of the operator’s employer; (iii) the date, time and place of the deposition; (iv) the caption of the case; (v) the name of the witness; (vi) the party on whose behalf the deposition is being taken; (vii) with respect to video conferencing or teleconferencing, the identities of persons present at the deposition and the location of each such person; and (viii) any stipulations by the parties; and (2) In addition, all counsel present on behalf of any party or witness shall identify themselves on camera. The oath for witnesses shall be administered on camera. If the length of a deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit shall be announced on camera. At the conclusion of a deposition, a statement shall be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters; and (3) All objections must be made as in the case of stenographic depositions.

(c) Editing. No audio-visual deposition shall be edited except pursuant to a stipulation of the parties or pursuant to order of the court and only as and to the extent directed in such stipulation and/or order. In any case where the parties stipulate or the court orders the audio-visual recording to be edited prior to its use, the original recording shall not be altered and the editing shall be done on a copy or copies.

(d) Recording and Transcription. (1) Any deposition may be recorded by audio-visual means without a stenographic record. The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter shall also be deemed an official record of the deposition. Any party may make, at its own expense, a simultaneous stenographic or audio record of the deposition. Upon request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording. (2) If an appeal is taken in the case, the appellant must cause to be prepared and filed with the clerk a written transcript of that portion of an audiovisual deposition made a part of the record in the trial court to the extent germane to an issue on appeal. The appellee may designate additional portions to be so prepared by the appellant and filed.

(e) Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

(f) Submission to the Witness; Changes; Signing. The provisions of Rule 4:5(e) shall not apply to an audio-visual deposition. The other provisions of Rule 4:5 shall be applicable to the extent practicable.

(g) Filing. Unless otherwise stipulated by the parties or ordered by the court, the original audio-visual recording of a deposition, any copy edited pursuant to stipulation or an order of the court, and exhibits shall be filed only in accord with Rule 4:5(f)(1).