Technology to Stay for Depositions, Process Servers in California

The California Capitol building.

SACRAMENTO, Calif. (CN) — California state courts will continue to allow litigants to serve documents electronically as well as conduct remote depositions under a pandemic-relief bill approved by lawmakers on the final day of the legislative session. 

Senate Bill 1146 enshrines emergency measures adopted by the Judicial Council during the coronavirus pandemic that were intended to help the state’s 58 superior courts safely make progress on their burgeoning case backlogs. 

The bill’s proponents, including the Consumer Attorneys of California, say allowing courts to continue to lean on internet technology even after the pandemic is over is critical in “keeping the wheels of justice moving.”

“This will be a change for the better, cementing the use of available technology to help overcome some of the dysfunction that currently plagues our civil justice system,” said Micha Star Liberty, president of Consumer Attorneys of California.   

Under the proposal by state Senator Tom Umberg, D-Santa Ana, deposition officers won’t be required to be in the presence of the deponent and can instead proceed remotely. Proponents note the bill doesn’t create a new method of conducting depositions, but rather utilizes existing methods already in widespread use in civil courts.

In addition, supporters say the bill will improve the current shortage of licensed freelance deposition reporters by allowing reporters to transcribe remote depositions — regardless of where they live. The Deposition Reporters Association of California contends the bill will still allow court reporters to intervene during depositions and ask clarifying questions if needed.

Joining the deposition association in support of the bill are the California Defense Counsel, Consumer Attorneys of California, Judicial Council of California and Court Reporters Board of California.

But the California Court Reporters Association, the only group to officially oppose SB 1146, is worried that depositions will increasingly take place out of state. It says non-California based companies are chomping at the bit to take away work from California deposition reporters.

“Remote depositions should not be used as an excuse to send work out of state, especially considering that different states have different laws and regulations surrounding depositions and labor codes that protect workers,” the association said in an opposition letter. “The California Court Reporters Association asks that the bill clarify that, as is the case with in-person depositions, the deposition officer appearing remotely be located in California.”

This past March, with the majority of state courts shuttered due to the pandemic, California Chief Justice Tani Cantil-Sakauye empowered the 58 individual superior courts to take other unprecedented actions to avoid becoming vectors for the coronavirus. Those actions included prioritizing criminal matters, extending timelines in criminal and civil cases, and conducting hearings by phone and video whenever possible.

The Judicial Council approved the emergency measures at a meeting in late March, saying the courts needed clear, uniformed guidance.

But despite the emergency actions, courts’ civil case backlogs have ballooned as many decided to stop accepting or process new civil complaints.

Hoping to ease the courts’ burdens when they eventually resume civil matters at full speed, lawmakers approved SB 1146 unanimously and sent it to Governor Gavin Newsom’s desk. The bill was passed with an urgency clause and will become law as soon as it is signed.

“California courts are struggling to find a way to operate in this pandemic, and must better utilize technology,” said Assemblywoman Eloise Reyes, who presented the bill Monday. 

Along with remote depositions, SB 1146 requires represented parties to accept service via email without first giving consent, even in courts that have not adopted mandatory electronic service procedures. The bill also extends civil pretrial deadlines 180 days after the Covid-19 state of emergency is lifted. 

Sen. Umberg says his bill was crafted to reduce future court delays and allow litigants to proceed carefully during the pandemic.

“Without emergency orders or a change in the statute, no depositions could be able to safely take place during this pandemic,” Umberg said of extending Judicial Council emergency rules 11 and 12. 

Lawmakers on Monday also sent Newsom another Judicial Council sponsored-bill that incentivizes state courts to offer e-filing for civil cases. Assembly Bill 2165 is intended to increase the overall efficiency of the electronic filing process and allow courts to recover more of their resulting costs for permissive e-filing.

The bill’s author says AB 2165 was crafted in part to allow farmworkers and others in rural areas better access to state courts.

“Allowing recovery of actual costs for permissive electronic filing will encourage the courts expansion into the digital area to improve access to judicial services while limiting financial strains of making this transition,” wrote Assemblyman Robert Rivas, D-Hollister, in a support letter.  

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