May 29, 2020
To the Members of the Advisory Committee:
Thank you for the opportunity to submit comments concerning possible rule amendments that could be helpful in future national emergencies. I write as the National Employment Lawyers Association’s liaison to the Advisory Committee. This letter contains NELA’s comments. We believe that adoption of these comments could, in general, improve cost and efficiency in discovery and certain court hearings. But, in particular, adoption of these comments would allow cases to continue forward even if the courts were closed due to a national emergency. These suggestions are meant to be neutral, i.e., their adoption should not result in giving advantages to one side.
Our procedure was to examine the existing language in certain rules and propose either new language or commentary. We begin with rules concerning discovery and continue with certain rules concerning hearings, oral arguments and bench trials.
I. Depositions and Subpoenas
Whether during an emergency or in the normal course, Rule 30 allows for depositions to be taken by telephone or video conference. Rules 28, 29 and other parts of Rule 30 should be interpreted to facilitate efficient, less costly and effective depositions by telephone or video conference.
Rule 28 sets forth the rules regarding “Persons Before Whom Depositions May Be Taken.”
- Issue: Whether “before” requires the court reporter be in the same room with a deponent and counsel.
- Solution: For clarity, we suggest an Advisory Committee note stating that the requirement that depositions be taken “before” an officer does not preclude remote depositions, nor does it preclude the court reporter and/or videographer being remote from the witness or counsel.
Rule 29 states, “Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition.”
- Issue/Solution: This rule should include the same proposed Advisory Note as Rule 28 for the same reason.
Rule 30(b)(4) (Oral Depositions By Remote Means) “By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.”
- First Issue: The rule may be clarified to include video conference as an example of means already contemplated by the phrase “other remote means.”
- Solution: Amend the rule to read: “By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone, video conference or other remote means.“ (additional language emphasized)
- Second Issue: During national or certain statewide emergencies, the default means of oral depositions should be by telephone or video conference. Practically speaking, during such emergencies courts may not be in session. Because uncooperative counsel on either side should not be able to delay discovery simply by refusing to stipulate, we submit that the requirement of stipulation or court order should be eliminated during emergencies.
- Solution: Add this language to Rule 30(b)(4) at the end: “During a declared national emergency or in a state where an emergency has been declared, depositions may be taken by telephone, videoconference or other remote means without stipulation or order of the court.”
Rule 30(b)(5)(A) (Before the Deposition): “Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28 ...”
Rule 30(c)(1) (Deposition Examination): “After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.”
- Issue: Courts and attorneys have and could continue to interpret the word “personally” to mean that the officer must record the testimony in the same physical place as the deponent. They could also interpret the phrases “before an officer” and “in the presence” to mean that the officer must be physically in the same place as participants in the deposition, including any person recording the deposition under the direction of the officer.
- Solution: Add a general Advisory Committee Note: “Unless otherwise stated in any rule, the words “appear,” “attend,” “before,” “present” and “personally” shall not mean or connote exclusively “in person.” One may also “appear” or “attend” by telephone or video conference. One may be “before” another, be “present” or do something “personally” by telephone or video conference.
Trial depositions should not count towards the total number of depositions permitted.
Rules 30 and 31 require leave of court to take more than 10 depositions, absent a stipulation of parties.
- Issue: The caselaw is divided on whether trial depositions count toward the presumptive limit of 10. If an emergency or other logistical difficulty prevents a party from bringing its witnesses to trial, that party should not be forced to choose between conducting necessary deposition discovery and conducting trial depositions of its own witnesses.
- Solution: Amend Rules 30(a)(2)(A)(i) and 31(a)(2)(A)(i) to add the phrase, “, except that a party’s trial depositions of its own witnesses shall not be counted.”
The parameters of issuing a subpoena for a remote deposition, hearing or trial testimony under Rule 45 should be amended.
Rule 45(c) states under the “Place of Compliance”: “(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person;” or “(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense.”
- Issue: The rule does not give the issuer or the witness the right to a telephonic or videoconference appearance amid a declared emergency like a natural disaster or a pandemic. In those circumstances, finding an acceptable location within 100 miles of the witness or even in the state may be difficult. Travel to a trial court may be difficult or even impossible, as well.
- Solution: Amend the rule to permit the witness to appear telephonically or by videoconference for “good cause.” Either the issuer of the subpoena or the witness could seek such an accommodation. In addition, add an Advisory Committee Note that good cause includes “a declared national or state-wide emergency such as a natural disaster or a pandemic.”
II. Hearings and Oral Arguments
Whether during an emergency or in the normal course, courts have held conferences, hearings and oral arguments by telephone or video conference. The rules should be interpreted to facilitate efficient and cost-effective hearings by telephone or video conference.
Rule 16(a) (Pretrial Conferences): The rule states: “In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences...” (emphasis added)
- Issue: Courts and attorneys could interpret the word “appear” to mean that an attorney or party must appear “in person.”
- Solution: Add an Advisory Committee Note: “Unless otherwise stated in any rule, the words “appear,” “attend,” “before,” “present” and “personally” shall not mean or connote exclusively “in person.” One may also “appear” or “attend” by telephone or video conference. One may be “before” another, be “present” or do something “personally” by telephone or video conference.”
Rule 16(c)(1)- The rule states: “ATTENDANCE AND MATTERS FOR CONSIDERATION AT A PRETRIAL CONFERENCE. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.”
- Issue: Courts and attorneys could interpret the words “attendance” and “present” to each mean that an attorney, party or representative must attend or be present “in person.”
- Solution: Add an Advisory Committee Note: “Unless otherwise stated in any rule, the court has discretion to determine that the words “appear,” “attend,” “before,” “present” and “personally” shall not mean or connote exclusively “in person.” With the court’s permission, one may also “appear” or “attend” by telephone or video conference. One may be “before” another, be “present” or do something “personally” by telephone or video conference.”
Settlement fairness hearings could be held, at the court’s discretion, by remote means.
Rule 23(e)(2) “SETTLEMENT, VOLUNTARY DISMISSAL, OR COMPROMISE. The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.”
- Issue: The rule provides that a hearing must occur before a court approves a class settlement, voluntary dismissal or compromise. Courts and attorneys could interpret this to require the ability of all or some class members, or objectors, to be physically present for the hearing.
- Solution: Add a sentence at the end, or an advisory note, stating, “The court in its discretion may hold class settlement, voluntary dismissal or compromise hearings using telephone, video conference or other contemporaneous electronic means.”
III. Bench Trials
Courts should be able to deem a witness “unavailable” under Rule 32 due to a declared emergency.
Rule 32(a)(4) (Unavailable Witness)- The rule states: “A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used.”
- Issue: Although subparagraph 32(a)(4)(C) of the rule deems witnesses unavailable if they cannot attend trial because of “age, illness, infirmity, or imprisonment,” the rule does not address the circumstance of witnesses unable to attend trial in an emergency, whether because of a legal prohibition on travel or the practical infeasibility of travel. In such an emergency, parties presumptively should be able to use the deposition of a witness who cannot travel, without the motion and notice required by the catch-all in subparagraph 32(a)(4)(E).
- Solution: Amend Rule 32(a)(4)(C) to read: “that the witness cannot attend or testify because of age, illness, infirmity, imprisonment, a legal restriction on travel, or emergency conditions that render travel impracticable.”
A declared emergency should constitute “good cause” to appear from a different location under Rule 43.
Rule 43 establishes the rule that witness testimony at trial must be taken in open court, but also states: “for good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.”
- Issue: The rule should confirm that “good cause” includes travel restrictions or risks related to a declared emergency such as a natural disaster or pandemic.
- Solution: Add an Advisory Committee note that a declared emergency such as a natural disaster or pandemic qualifies as good cause.
Rule 77(b) should permit remote hearings or trials in the normal course and/or during a state of emergency.
Rule 77(b)- “PLACE FOR TRIAL AND OTHER PROCEEDINGS. Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearing—other than one ex parte—may be conducted outside the district unless all the affected parties consent.”
- Issue: The rule requires a trial on the merits to be conducted “so far as convenient, in a regular courtroom,” which could be read to prevent a remote trial during a declared emergency, such as a pandemic.
- Solution:The rule should be clarified to read, “Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. For good cause shown, the Court may conduct a bench trial using video conference or other contemporaneous electronic means. At the request of all parties and under extraordinary circumstances, the Court may conduct a jury trial using video conference or contemporaneous electronic means.”
If the Committee or its staff have any questions or would like further clarification or explanation of any of the above suggestions, I would be pleased to speak with them. Thank you again for the opportunity to provide NELA’s commentary.
Joseph D. Garrison
NELA Liaison to the Civil Rules Advisory Committee