WSR 20-01-038
[December 4, 2019]
NO. 25700-A-1279
The Washington Court Reporters Association, having recommended the suggested changes to CR 30-Depositions Upon Oral Examination, and the Court having approved the suggested changes for publication;
Now, therefore, it is hereby
(a) That pursuant to the provisions of GR 9(g), the suggested changes as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2020.
(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.
(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2020. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Comments submitted by e-mail message must be limited to 1500 words.
dated at Olympia, Washington this 4th day of December, 2019.
For the Court
Fairhurst, C.J.
chief justice
Suggested Changes to
A. Name of Proponent: Washington Court Reporters Association
B. Spokespersons:
Elizabeth Patterson Harvey, CCR, RPR
WCRA Member
PO Box 16009
Seattle, Washington 98116
Phyllis Craver Lykken, RPR, CLR, CCR
WCRA Co-President
917 Triple Crown Way, Suite 200
Yakima, Washington 98908
C. Purpose:
Amending CR 30 as proposed will allow court reporters and other officers to place a deposition witness under oath remotely. Under this new rule, parties may take full advantage of CR 30 (b)(7) telephonic or videoconference depositions. Currently, Washington Court Rules do not allow a court reporter to administer an oath remotely. As a result, litigants in Washington wishing to conduct a remote deposition must arrange for a court reporter or notary to place the deponent under oath in the deponent's physical presence. This cumbersome arrangement limits the flexibility that CR 30 (b)(7) should promote. Our proposal is a minor change that will allow litigants to realize the time and cost-saving promise of remote depositions.
All participants in the legal system are increasingly sensitive to the environmental, personal, and financial costs of deposition travel. CR 30 (b)(7) provides a mechanism to reduce these costs. But in order to make remote depositions less logistically burdensome, we seek to clarify CR 30(c) to allow a court reporter to perform his or her duties remotely from the deponent. With improvements in technology, the use of telephonic and videoconference depositions is on the rise. This proposed amendment allows court reporting to adapt to technological changes because court reporters continue to play a crucial role safeguarding the discovery process. Amending CR 30(c) grants the flexibility of a fully remote deposition with the safeguards of a court reporter.
This change has the added benefit of reducing travel time for court reporters, and should help ameliorate Washington's shortage of court reporter services. Exhibit A. By relieving travel demands on court reporters, the costs of deposition should go down and the availability of court reporting to underserved areas should rise.
Other jurisdictions already allow remote oath and recording. When Oregon amended its court rules in 1992 to permit telephonic deposition by stipulation, it simultaneously allowed court reporters to administer an oath by telephone. Exhibit B. And in Washington, a court reporter may swear in a deponent telephonically for Board of Industrial Insurance Appeals perpetuation depositions. Exhibit C.
Our proposal avoids a conflict with other provisions by also amending CR 30 (b)(7) to remove reference to CR 28(a). This maintains the default structure of Court Rules and statutes that links governing law with the place of the deponent. See CR 37; 45; RCW 5.51. This amendment preserves that structure for every purpose except for requiring that a deposition be taken before a person authorized to administer oaths in the deponent's jurisdiction.
There is no conflict between this proposal and WAC 308-14, which relates to licensing of court reporters. Nor does it conflict with the Court Reporting Practice Act, Chapter 18.145 RCW.
D. Hearing: WCRA requests a hearing
E. Expedited Consideration: WCRA does not request expedited consideration
F. Supporting Materials:
Exhibit A - Wall Street Journal Article from July 28, 2019 reporting on the national court reporter shortage and its impacts on our justice system.
Exhibit B - Excerpts from Oregon's Council on Court Procedures 1992 Amendments to Oregon Rules of Civil Procedure, in which Oregon amended its Civil Rules 38 and 39 to allow for telephonic depositions and remote administration of oaths.
Exhibit C - Washington Administrative Code 263-12-117, allowing remote oaths by court reporters taking perpetuation depositions in Board of Industrial Appeals matters.
(b) Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization; Video Recording.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or by other electronic means. For the purposes of this rule and rules 28(a), 37 (a)(1), 37 (b)(1), and 45(d), a deposition taken by telephone or by other electronic means is taken at the place where the deponent is to answer the propounded questions.
(c) Examination and Cross Examination; Record of Examination; Oath; Objections. Examination and cross examination of witnesses may proceed as permitted at the trial under the provisions of the Washington Rules of Evidence (ER). The officer before whom the deposition is to be taken under rule 28(a) 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. However, such oath and recording may be administered by the officer from a location remote from the deponent, provided that the officer is located within this state. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subsection (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed.