Massachusetts depositions: everyone in the room with the witness has to log in separately

Massachusetts has written the video-conferencing deposition into Rule 30 in more detail than any other state here. If you take remote depositions, the protocol below is not best practice — it is the rule.

The remote-deposition protocol

A deposition "may be taken in a civil case remotely by video-conferencing platform or by telephone" on the notice of the party taking it. No stipulation, no motion. But the platform and the room are then regulated.

Everyone must be identifiable:

The video-conferencing platform used for the deposition must be able to show a real-time list of those persons attending the deposition, and attendees must make reasonable efforts to be identified on that list. All persons present in the same physical location as the deponent during a video-conferencing deposition must separately log in to the videoconferencing deposition so that they are individually identified during the video-conferencing deposition and the deponent can be shown separately.

That second sentence is the one to read twice. A lawyer sitting beside the witness cannot simply share the witness's camera. They log in on their own device, so the attendee list shows them and the witness can be framed alone.

Feeds stay on for the people who matter:

The sound and video feeds for the deponent, participating counsel for the parties, counsel for the deponent, self-represented parties, and the court reporter must remain on while the video-conferencing deposition is on the record. Other attendees should mute their sound feed and, if not in the same physical location as the deponent, should shut off their video feed when not speaking, after identifying themselves for the record.

Note the trigger: on the record, not merely connected. And an attendee who goes dark must identify themselves for the record first.

And the door is watched:

If any person enters the room where the deponent is located during the deposition, the deponent or counsel in the room shall immediately notify the video-conferencing participants and the person who entered the room must either separately log in to the video-conferencing deposition or be otherwise visible to all attendees on the video feed.

The duty is immediate and it falls on the deponent or counsel in the room — the people best placed to see the door, and the people with the most reason not to mention it. Raise it at the start of the deposition so the obligation is on the record.

Two more provisions round out the scheme. The notice "shall specify, reasonably in advance of the deposition" the platform details. The officer "is authorized to administer oaths and take testimony without being in the physical presence of the deponent" — which resolves the objection that dogged early remote practice. And attendance is limited: "Only persons who would be entitled to attend an in-person deposition in the case may observe the video-conferencing deposition."

Any party may move — to the court where the action is pending or the court where the deposition is to be taken — for relief from the remote format.

Seven days to notice, thirty to demand documents

Rule 30(b)(1) sets the ordinary notice period:

A party who wants to depose a person by oral questions must give written notice to every other party at least 7 days before. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.

Seven days is short by national standards. But a document demand attached to that deposition is not:

Notwithstanding Rule 30(b)(1), such a request for production at the deposition under Rule 34 shall be made with 30 days' notice to every party, although the court may allow for a longer or shorter time.

Thirty days where the notice carries a Rule 34 request. The two clocks are easy to conflate, and a seven-day notice with documents attached is defective as to the documents.

The recording method, and who pays

Rule 30(b)(3)(A) puts the choice in the notice, with a disclosure requirement:

The party who notices the deposition must state in the notice the method(s) for recording the testimony. If the notice states that the deposition will be recorded by audiovisual means, the notice shall also indicate if the operator is an employee of the noticing attorney.

That last clause is unusual and worth using: if the videographer works for the examining lawyer, the other side is entitled to know before the deposition, not after.

Massachusetts then keeps the stenographer as a fixture:

A stenographic record shall always be prepared, unless the parties otherwise stipulate. Additionally, the noticing party may choose to record the deposition by audiovisual means.

Video is in addition to, never instead of, a transcript — unless everyone agrees otherwise.

Costs follow the notice:

The noticing party bears the recording costs, except that each party shall bear the cost for a copy of the stenographic record and of any audiovisual recording. The party noticing an audiovisual deposition shall be responsible for assuring that the necessary equipment is present.

Any party may arrange to transcribe a deposition at its own expense, and taxation of costs — including "taking, editing, and using an audiovisual deposition at trial" — is governed by Rule 54(e).

When leave is required

Rule 30(a)(2) lists the situations in which "[a] party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26 (b)(1)" — including a deposition sought before the time the rules otherwise allow. The familiar protection for a defendant served early appears here too: a party served with an accelerated notice who "was unable through the exercise of diligence to obtain counsel to represent it at the taking of the deposition" is protected against the deposition being used against it.

A short checklist

Noticing one:

1. Count 7 days — or 30 if you are attaching a Rule 34 document request.
2. State the recording method in the notice, and disclose if the videographer is your employee.
3. Expect to pay for the recording; the other side pays only for its copies.
4. Bring the equipment if you noticed an audiovisual deposition.
5. Specify the platform details reasonably in advance for a remote deposition.
6. Remember a stenographic record is always prepared unless everyone stipulates otherwise.

On the day, if it is remote:

1. Make everyone log in separately, including anyone sitting with the witness.
2. Keep the required feeds on — deponent, counsel, self-represented parties, court reporter.
3. Announce anyone who enters the witness's room, and get them logged in or on camera.
4. Check the attendee list. Only people who could attend in person may observe.

Where these rules live

• Mass. R. Civ. P. 26 — General Provisions Governing Discovery
• Mass. R. Civ. P. 30 — Depositions Upon Oral Examination
• Mass. R. Civ. P. 32 — Use of Depositions in Court Proceedings
• Mass. R. Civ. P. 34 — Production of Documents and Things
• Mass. R. Civ. P. 54 — Judgments; Costs
• Massachusetts discovery deadlines
• Massachusetts motion to compel discovery

This page explains what the rules say. It isn't legal advice, and an individual court's standing order may add requirements for remote proceedings that this page does not cover.