With Covid came a new chapter in most litigators’ lives: remote depositions. There are no doubt lovers and haters of this development, but there is also no doubt this technological development is here to stay. Accordingly, everyone needs to be aware that N.C. Gen. Stat. § 10B-25, which authorized “emergency video notarization” and opened the door to this practice, has expired. There does appear to be a workaround, however.

Originally set to expire in March of last year, the General Assembly modified the statute to extend to December 31, 2021. Unfortunately, the General Assembly adjourned before Omicron ruined all of our well-laid holiday plans (and perhaps your plans for returning to in-person depositions), and before they could pass legislation continuing a court reporter’s ability to swear in a witness remotely. If you haven’t been to the Secretary of State’s webpage in the last two weeks, you haven’t seen Secretary Marshall’s notice to the public on this: “Notice: The temporary Emergency Video Notarization Law expired on 12/31/21 at 12:01 am. ALL notarial acts, traditional and electronic, revert to the original law requiring in-person, physical presence by the principal or principals.”

This does not mean the end to remote depositions, however. As aforementioned, this issue is on the General Assembly’s radar and may be taken up when legislators return. In the meantime, our Rules of Civil Procedure provide the flexibility we need to continue the practice of remote depositions. Specifically, Rule 29 provides:

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 29 does not reopen the door to notaries administering oaths remotely, but in conjunction with Rule 30, it does appear to allow for counsel and their clients to agree in writing to procedures that will allow for remote depositions to continue, and for those depositions to be later admitted at trial. Pursuant to Rule 30(c), deponents lacking a government ID can have their testimony taken subject to a signed declaration that it is given under penalty of perjury. This ostensibly paves the way for parties and their counsel to agree to remote depositions without the court reporter in the same room as the witness, so long as the witness signs that his or her testimony is under penalty of perjury. Without that, we as litigators run the risk of deposition “testimony” not being testimony at all, and as a result not being admissible at trial.

So what do the parties need to agree to, and what should the stipulation say? For starters, the stipulation needs to include that the parties agree that depositions may be conducted remotely, and that for a deposition to be conducted remotely, the witness must sign a declaration prior to the start of the deposition that they are providing deposition testimony under penalty of perjury. For further reading on this subject, as well as the Rule 30 requirements, I’d recommend reading Jeff MacHarg’s article on remote depositions, which suggests this:

The stipulation should include the details about remote participation by video or audio, exhibit use and exchange, any agreement on how the oath or affirmation will be administered or whether a traditional oath requirement will be waived. The stipulation can also address some of the logistical, technological and practical considerations[.]

As for the deponent’s declaration, our firm recently received the attached suggestive language from one of the court reporting companies we use:

The Undersigned, hereby attests as follows:

My deposition in this matter was taken on [date] 2022. Under penalty of perjury, I declare that my testimony is truthful and I acknowledge that a material misstatement of fact made by me while giving my testimony may be grounds for a conviction of perjury under the laws of this State. I understand that this declaration shall be attached to my deposition transcript as an exhibit and filed with the transcript.

On a side note, everyone should also be aware of newly-minted N.C. Gen. Stat. § 7A-98 which allows for declarations in the place of affidavits in most instances once the State’s new e-filing system becomes active (note, too, that under the same Session Law including the above is newly minted N.C. Gen. Stat. § 7A-49.6, which allows the trial courts to conduct any proceeding remotely). Interestingly, this new statute expressly does not apply to “oral testimony.” Nevertheless, the inclusion of such a signed declaration under Rule 30(c) combined with Rule 29 still should provide firm ground for conducting remote depositions that are admissible at trial unless and until the General Assembly revisits the subject.

If anyone has navigated this route or has additional thoughts on the subject, I for one would certainly be interested to hear from you. A special thanks to Jeff MacHarg, Matt Wolfe, and Charles George for their input on this subject.

January 18, 2022/by Litigation