By: Caroline Burkard
Remote depositions? Extending pre-trial deadlines? Permitting electronic service of notice? Is this really the most expedient and cost-effective way to guarantee an individual’s right to due process? The State of California thinks so.
Since the start of Governor Gavin Newsom’s Executive Order on March 19, 2020, the 58 California trial courts have operated at different capacities during the COVID-19 pandemic. Some courthouses stayed open only for emergency hearings, while others “indefinitely postponed all civil proceedings,” and some even went fully remote. On March 23, 2020, California Chief Justice Cantil-Sakauye suspended all jury trials for the following 60 days. However, when some courts began to open back up after 60 days, some opened partially, and some didn’t reopen at all. Legislatures felt that the lack of “uniformity” was a disservice to Californians, and as a result, rallied for Bill S.B. 146.
Bill S.B. 146 provides for extensions to service and notice deadlines, allows for electronic service of notice, and most importantly, allows for remote depositions. In order for the legal system to keep “the wheels of justice moving,” this bill would remain in effect even “after the pandemic is over.” Instead of serving an individual by “mail, express mail, overnight delivery, or facsimile transmission,” parties can now consent to service via electronic transmission. Additionally, all pre-trial deadlines are extended under California’s state of emergency as well as an additional 180 days (this sentence is unclear…does this mean that all pre-trials are extended by 180 days?). The purpose of this specific action was to “ensure that litigants whose trial dates were continued during this time are treated uniformly across the state.” Furthermore, in order to reach numerous individuals without having to consider travel time California also adapted to remote depositions.
Micha Star Liberty, President of the Consumer Attorneys of California, stated, “[t]his will be a change for the better, cementing the use of available technology to help overcome some of the dysfunction that currently plagues our civil justice system.” By enabling the use of electronic services of notices, individuals will be able to be reached the moment a party clicks, “send,” rather than the days and possible weeks it could take for one individual to receive a single notice.
Furthermore, by extending deadlines, all parties who file (electronically?) would continue to be treated in an orderly way without worrying about compromising a client’s deadline to file within the court system. Instead of postponing all civil proceedings, civil notices would be processed at the time they are received, while still keeping in mind those services already filed electronically during a specific court’s closing.
Although these additions to California law seem to be on the right technological track, the question that needs to be asked is, “are remote depositions just as effective and accurate as in-person depositions?” The problem with this question is that there isn’t a definite answer. On one hand, it could be hard to assess the credibility of a specific witness through a recorded video, and on the other hand, the amount of time saved through remote depositions could be invaluable.
The mere idea of a remote deposition could cause an attorney to feel ill. For attorneys that rely on self-assessing a witness’ credibility, they would have to watch a video and try to determine if it looked like the witness seemed nervous or if the internet was just glitching. Likely, the fair resolution to the debate of remote depositions would be to allow for both attorneys to choose to agree or disagree to a remote setting, rather than force them to accept the terms and risks of a remote deposition.
Student Bio: Caroline Burkard is in her second year as an accelerated evening student at Suffolk University Law School. She currently serves as a staff member on the Journal for High Technology Law. Caroline received her Bachelor of Arts in Political Science and her Master of Education from UMASS Boston.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
