Telephone Depositions - Answers to your Questions
Posted by YOM Staff
About Telephone Depositions
Telephone Depositions - Q & A
Who may administer the oath to a telephone deponent? In Washington state and federal court, depositions are to be taken before a person authorized to administer oaths under federal law or under the law of the place where the deposition is held. Rule 28(a). A deposition is considered to be held where the witness is located. So if you are with an attorney in Washington and the witness is in California, you need to have a person authorized to administer oaths under California or federal law.
There are two exceptions to this requirement. First, the court where the case is pending may appoint someone to administer oaths to out-of-state witnesses. Rule 28(a). Second, the parties may enter into a written stipulation that a deposition may be taken before "any person, at any time or place, upon any notice and in any matter and when so taken may be used like other depositions." Rule 29.
Where does the person administering the oath have to be? Under Rule 28, a deposition is to be taken before the person authorized to administer oaths. Courts have interpreted the word before to mean that the witness has to be in the presence of the person administering the oath. Aquino v. Automotive Service Industry Association, 93 F. Supp 2d. 922 (N.D. Ill. 2000)
That said, Rule 29 allows the parties to enter a written stipulation that the oath may be administered over the phone, and courts have allowed the practice. Hudson v. Spellman High Voltage, 178 F. R. D. 29 (E.D. N.Y. 1998). Nevertheless, the best practice is to have the notary (or other person administering the oath) in the presence of the deponent. The next best practice is to have the Court specifically approve the telephonic administration of the oath. And the third best option is a written stipulation between the parties under Rule 29.
Does the court reporter have to be in the presence of the person administering the oath? In most cases, the court reporter administers the oath to the witness. When the oath is administered by someone other than the court reporter, Rule 30(c) specifically provides that "the officer before whom the deposition is taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness." Under this rule, the notary and the court reporter must be in the same place. Again, this requirement may be modified by the Court or through a Rule 29 written stipulation.