Depose Witnesses Remotely at your own Risk.
On March 27, 2020 as Governor Roy Cooper's Stay at Home Order went into effect, I was fielding requests from other North Carolina lawyers to move forward with depositions. The push was on to try to keep cases moving forward.
Despite the push, I dug in my heels out of concern for the impact remote depositions might have on my client's ability to present their case to a judge or jury. Exasperated by my resistance, opposing counsel twisted themselves into knots trying to force the depositions. They declared that we could simply stipulate that the court reporter could swear the witness remotely. The witness can just sign a declaration, they said. What, after all, is the big deal?
While many trial lawyers routinely take depositions remotely, we have never been faced with a situation where all of the participants are remote, including the court reporter. I was digging my heels in because a court reporter, at least in North Carolina, cannot swear a witness in remotely. While the other lawyers seemed unphased by this, as a lawyer who actually tries cases in front of juries, my concerns grew deeper.
Questions Worth Considering about Unsworn Testimony
If the witness is not sworn, then what happens? How do you use an unsworn deposition at trial? Is an unsworn deposition admissible as evidence? Can you use an unsworn deposition to cross-examine a witness and challenge their credibility? What if they just said they were unclear what the rules were at the time they gave their deposition and tried to wiggle out of their unsworn deposition?
First and foremost, a deponent has to be sworn in under North Carolina law. N.C. Gen. Stat. §1A-1, Rule 30(c) states, "The person before whom the deposition is to be taken shall put the deponent on oath and shall personally... in the person's presence record the testimony of the deponent." [emphasis added] The only exception is if "a deponent lacks the government-issued photographic identification necessary for the deponent to be put on oath ..." Id.
In order to swear in a witness at a deposition, the court reporter must be a notary. N. C. Gen. Stat.§10B-20 provides that a "notary shall not perform a notarial act if any of the following apply: (1) The principal or subscribing witness is not in the notary's presence at the time the notarial act is performed..."
For those lawyers who told me that we could stipulate to the witness being sworn in remotely, shame on you. It is a Class I misdemeanor if a notary administers an oath to someone who does not appear in person before the notary. N.C. Gen. Stat. §10B-60(c). Congratulations, you just stipulated to your court reporter committing a crime.
The Facts on Remote Depositions
If you are not convinced that taking a deposition in North Carolina under these circumstances is not a wise idea, consider these additional issues:
- NC. Gen. Stat.§8C-1, Rule 603 of the Evidence Code requires every witness to "declare that he will testify truthfully, by oath or affirmation..." If you want to use a deposition of a witness who is unavailable at trial, this Rule suggests that you would not be allowed to use an unsworn deposition in lieu of a persons appearance at trial.
- NC. Gen. Stat§1A-1, Rule 32 of the North Carolina Rules of Civil Procedure controls the use of depositions at trial and says a deposition can be used, "at the trial... so far as admissible under the rules of evidence applied as though the witness were then present and testifying..." Again, if the deposition is not admissible under Rule 603 then Rule 32 makes clear that a deposition cannot be used at trial.
- North Carolina Pattern Jury Instruction 100.40 instructs jurors that when a deposition is being presented to them in lieu of live testimony that "a deposition is the sworn testimony of a witness given before the trial... and otherwise should be considered by you ... in the same way as if the witness were present and gave testimony from the witness stand." If a witness at a deposition is not sworn, then this instruction does not apply and the jury cannot give the same weight and consideration to the deposition as they would if the witness were present at trial.
Practical Reasons to Resist Remote Depositions Right Now
On top of all the legal reasons not to take depositions remotely at this time, there are also some very practical reasons not to do it.
- Document intensive depositions are cumbersome enough in person. Imagine the pitfalls of sending the witness your stack of exhibits in advance of a remote deposition. What if they claim they never got the package? What if they claim the key document you need to go over with them was not in the package? The court reporter is no longer in control of the exhibits, the witness is.
- Suppose you have a hostile witness on your hands? What if they simply get up and walk out of the deposition?
- While we would all like to believe our fellow lawyers are 100% ethical, there is a risk that your opposing counsel is in contact with the witness remotely. They could be sending text messages to the witness as you are asking your questions, directing the witness on how to answer. Unethical, right? Yes. But are you so sure your opposing counsel wouldn't do it?
At Lincoln Derr we try cases. We understand the Rules of Evidence and we anticipate how they will affect the trial, even at the deposition phase of the case. We are technologically equipped to take remote depositions even during a Stay at Home Order, but we also know that just because you can doesn't mean that you should.