It’s well established that taped pre-trial depositions can be fair game as evidence in federal civil trials. California, which hosts two of the nation’s largest metropolitan legal markets, is no different. California’s Code of Civil Procedure (CCP) permits parties to use taped pre-trial depositions as evidence. Nonetheless, you will face admissibility obstacles if you fail to follow CCP-compliant procedural and recording practices. Here are some important considerations you should explore as you approach your next deposition.
Steps You Will Need to Take When Conducting Your Deposition
If you are looking to tape a deposition and submit related footage into evidence, CCP § 2025.220 states that you’ll need to make specific disclosures first in your deposition notice. You may also need to serve your deposition notice on specific participants depending on the type of deponent you’re interviewing. Satisfying this requirement is straightforward, although overlooking these steps could jeopardize your ability to admit this footage into the record. When reviewing your deposition notice, ensure you’ve taken the following steps in addition to baseline notice requirements.
- Record your intent to tape the deposition and use it at trial – In your deposition notice, you’ll need to include a statement expressing your intent to record the deposition by video and/or audio. You’ll also need to serve this notice on the deponent and other interested parties. If you intend to incorporate real-time court reporting tools, you must note your intent to do so and serve a copy of your notice on the deposition officer.
- Record your intent to use expert witness and physician deposition footage at trial – If you’re planning to depose a practicing physician or expert witness, you have the right to submit footage of their non-objectionable testimony at trial even if that witness is available to testify at trial. However, you must include a statement clarifying your intent to do this and ensure that the deposition officer you select to film the deposition is completely unaffiliated with any party, eligible to administer oaths, and has no financial interest in the matter’s outcome.
- Transcribe the deposition—By default, a qualified stenographer must be present to record a taped deposition, so long as the stenographer used meets the qualifications described California’s Business and Professions Code. While the CCP permits parties to waive this requirement through unanimous agreement, parties who intend to use pre-trial deposition footage as evidence courts must submit a stenographic transcript prepared from the deposition footage.
After you’ve served your necessary notices, you’re ready to film your depositions. There are still specific steps you’ll need to take before, during, and after the recording process to ensure your recordings are admissible. CCP § 2025.340 describe these steps, and instructs parties and their attorneys to consider the following:
- Is your recording room setup compliant? —CCP § 2025.340(a) requires attorneys to ensure the area they use for recording any oral testimony to be suitably large, adequately lighted, and reasonably quiet. Using non-intrusive recording equipment can help you meet this requirement. If the individual or company acting as your deposition officer is offering you products and services to assist with the recording process, the officer must make these available to all other parties at a reasonable cost. Parties, however, cannot request the deponent’s personally-identifiable information or the officer’s notes on each participant’s demeanor and body language.
- Who is operating your recording equipment?—Law firms can generally use their own employees to operate their recording equipment depositions, so long as those employees can competently set up, monitor, and operate your equipment. If you’re deposing an expert witness, practicing physician, or consulting physician, this isn’t allowed. You must instead let a neutral, nonaffiliated deposition officer who is authorized to administer oaths. He or she must also have no financial interest in the matter’s outcome. Regardless of who ends up operating your video deposition recording equipment, you must ensure that you avoid using editing or sound recording techniques that end up manipulating or altering the participants’ appearance or demeanor.
- Are you following proper on-camera procedures?—Each taped deposition you produce must begin with an oral or written statement disclosing the taping operator’s business address and name; the time, place, and date of the deposition; the case’s caption; the deponent’s name; any party-requested stipulations; and a statement disclosing whom the deposition is being conducted for. All attorneys will also need to identify themselves, and the officer will need to administer an oath to the deponent on camera. If the deposition needs to be saved across multiple files, the officer will need to announce the conclusion and the beginning of each taped segment. Once the deposition is complete, the officer will announce the conclusion of the deposition on camera and state any stipulations made by the parties’ lawyers regarding custody of the recording, exhibits, and other important matters.
- Have you preserved your original files?—California courts permit parties to submit clips of taped depositions and may unilaterally require parties to edit out sections of any taped testimony those parties plan to show at trial. Still, CCP § 2025.340(m) requires parties to preserve their original, unaltered deposition recordings.
When Can You Use Taped Deposition Testimony at Trial
Once you’re done recording, you’re ready to submit your deposition tapings into evidence. CCP § 2025.620 permits parties to use taped depositions for any purpose in trials or other hearings related to a civil matter. This includes using pre-trial deposition footage to impeach witnesses, contradict testimony, and include deponents who live more than 150 miles from the hearing. Lawyers can also submit taped pre-trial deposition footage when specific deponents are dead, unavailable due to mental or health complications, precluded from testifying on privilege grounds, or inaccessible after reasonable attempts to procure their appearance through court orders and service of process. Courts will also consider pre-trial deposition footage in exceptional circumstances or in the interests of justice.
While California courts allow parties to use pre-trial deposition recordings as evidence, you’ll still need capable and compliant tools to record these depositions properly. CaptureCast Legal’s recording platform includes easy-to-use tools that attorneys of all technical backgrounds need to prepare their pre-trial depositions for production. Visit CaptureCastLegal.com to learn how our recording platform can enhance your trial and litigation capabilities.
Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.