As we enter the eighth month of the COVID-19 pandemic, California courts and litigants continue to grapple with how to move civil cases forward.
Senate Bill 1146, approved by Governor Newsom on September 18, 2020, and effective immediately, facilitates the taking of depositions by allowing court reporters to attend remotely and enables electronic service of papers as to represented parties. While these reforms are helpful, SB 1146 leaves challenges that may be heightened in trust and estate litigation.
Remote Depositions Now Allowed, Though Not Required
A deposition is a key part of civil litigation, allowing a party to obtain sworn oral testimony from another party or a third party witness prior to trial. Until the pandemic began, most depositions occurred around a conference room table, with the court reporter sitting at the head of the table and the lawyer asking the questions sitting directly across from the witness (known as the “deponent”). California law generally required the court reporter to be present in the same space with the deponent.
Given that depositions typically run for several hours, or even multiple days, the traditional in-person approach to depositions does not meet social distancing criteria.
After the pandemic began, the California Judicial Council adopted Emergency Rule of Court 11 to allow court reporters to participate in depositions remotely, such as by Zoom videoconferencing.
SB 1146 codifies Emergency Rule 11 by amending California Code of Civil Procedure section 2025.310. The party noticing a deposition, or the deponent, may elect to have the court reporter (also known as “deposition officer”) attend the deposition remotely and the reporter need not be physically present to swear in the deponent.
Thus, if a witness seeks to limit in-person contact, he or she may maintain social distancing by testifying via videoconference. The court reporter, parties to the case, and their lawyers, all may participate in the deposition remotely. In addition to health risk reduction, such remote depositions may save money by eliminating attorney travel time and increase accessibility by allowing parties who live far from the deposition location to participate or observe in real time.
The revised statute, however, allows any party or attorney of record to attend the deposition in person, which could result in conflict between a witness who wants to socially distance and a party or attorney who wants to be “in the room where it happened.”
Consider this situation. Madeline and her sister Josephine are in their 80s. They live in a house together. Madeline, who has Alzheimer’s disease, changes her trust to favor Josephine. After Madeline dies, her son Sam contests the trust amendment that reduced the value of his share.
Josephine is tech savvy and concerned about COVID-19. She would prefer to have her deposition taken at her home by videoconference. Yet Sam and his lawyer Saul, for tactical reasons they don’t care to explain, want to be present when Josephine testifies. They also want to bring in a videographer so they can play excerpts of Josephine’s deposition at trial.
Josephine’s lawyer says that she wants to be present if Sam and Saul are there, so now Josephine faces the prospect of having four others, i.e., everyone except the court reporter, spending hours at her house in close proximity with her.
Under amended section 2025.310, the parties will either have to agree on how to proceed with Josephine’s deposition or get guidance from a judge.
Hence, while the new law gives California litigants an optional way to proceed with remote depositions, some litigants will be disinclined to accept the fully remote approach, which could lead to delay and increased expense as parties litigate over how depositions will proceed. The frequency of such disputes may be higher in trust and estate litigation, as it often involves older participants who may have greater health concerns.
Electronic Service Now Allowed as to Represented Parties
While electronic transmission of documents has been commonplace for over two decades, California civil litigation practice has been slow to catch up.
Until this spring, civil litigants in California counties without mandatory electronic service procedures were not required to accept service of papers electronically. Thus, notices and other documents such as interrogatories and document requests had to be served on other parties in paper form, either by U.S. Mail, overnight delivery or personal service. Only if other parties expressly consented to electronic service could papers be served on them by email.
When the pandemic arrived, the usual means of sending and receiving papers were interrupted. Law office staff working remotely could not readily send out documents via U.S. Mail or Federal Express, nor might they be present at the office to open up and process papers received in that way.
The Judicial Council adopted Emergency Rule 12, which required parties represented by counsel to accept electronic service of notices and other documents, provided that the serving party first confirms the appropriate electronic service address for counsel being served. Rule 12 likewise required parties represented by counsel to electronically serve other parties who requested and provided an address for such service.
SB 1146 essentially codifies Emergency Rule 12 by amending Code of Civil Procedure section 1010.6 for cases filed after January 1, 2019. Represented parties, after confirming electronic service addresses, may serve other represented parties electronically. Represented and self-represented parties may require represented parties to effectuate service electronically.
Trust and estate cases often include an assortment of parties represented by counsel and those who are representing themselves. It is not always clear whether self-represented parties are participating in the case as parties such that they must be served with papers, as sometimes they may only attend a hearing to observe.
Overall, while amended section 1010.6 streamlines service procedures and allows more work to be done remotely, the involvement of self-represented parties will reduce such efficiencies by requiring the transmittal of paper copies by traditional means. Lawyers and law firms still will need to process incoming paper mail received from self-represented parties.
Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.