In this post: as remote depositions are becoming standard, we look at the different state requirements for remote deposition and swearing-in.
In early 2020, state supreme courts across the country temporarily modified existing laws and put emergency provisions in place to allow depositions to be conducted remotely via audio-video conferencing technology. Some states even authorized witness testimony by telephone. As a result, the virtual deposition has become the standard. What’s not so standard is the way to handle the swearing-in of a witness remotely.
Traditionally, the rules of civil procedures required a court reporter or stenographer, as officers of the court, to record the deposition and administer the swearing-in of the witness in person. We’re in new territory now, working with sometimes ambiguous and conflicting rules.
Most states have temporarily relaxed their rules to allow remote swearing-in, but requirements are not the same everywhere. Two of the most common state requirements for remote swearing-in are 1) the deponent must provide on-camera proof of identity; 2) the deponent and notary must be physically situated in the same state. Although physical location, along with state affiliation, is a common requirement, it’s not made explicit in every law.
Here in New York, a court reporter recording a case that originated in New York, may remotely swear-in a deponent in any state. The law states the deposition may be taken by:
“1. within the state, a person authorized by the laws of the state to administer oaths; 2. without the state but within the United States or within a territory or possession subject to the jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken.”
Likewise, Virginia, which requires a separate registration for electronic notaries. Their law is very clear:
“An electronic notary public may perform any authorized notarial act outside of the Commonwealth for any writing intended to be used in the Commonwealth of Virginia or by the United States government. Please note the remote notarial act is not extra-territorial because it is deemed to have been performed within the Commonwealth of Virginia at the place where the electronic notary is located.”
Rules for the Oath Vary
In the majority of states, in-person deposition requirements can be waived by simply adding a stipulation to the record that all parties agree to remote participation. When it comes to remotely swearing-in the deponent, it varies. To give you an idea of the extent of the variance, here are a few examples:
In Delaware, remote depositions only need a stipulation added to the record. They have also temporarily suspended all notarization requirements, authorizing the use of a signed affidavit form instead of an oath.
Pennsylvania suspended the in-person requirement for depositions and approved “phone conference, video conference, or web deposition,” but a court reporter must be approved as an Electronic Notary in order to remotely administer oaths.
Maine has the most open-ended rules, stating, “If the parties so stipulate to the person before who the deposition is to be taken, that person has the authority to administer oaths.” The order also states, “Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and (2) modify the procedures provided by these rules for other methods of discovery.”
In Mississippi, while the deposition can be conducted remotely, the requirements for the swearing-in read: “All persons qualified to administer an oath in the State of Mississippi may swear a witness remotely by audio-video communication technology from a location within the State of Mississippi.”
Interestingly, Nevada, Wyoming (in some cases), and the District of Columbia allow the deposition parties to stipulate on the record that an officer of the court is not needed to administer the oath.
On the Federal level, a bill was introduced that would allow “a notary public commissioned under state law to remotely notarize electronic records and requires recognition of notarization performed under the laws of other states.” The proposed legislation was submitted on 3/18/20 and has yet to move forward. If enacted, this would be a major step.
Perhaps we’re heading toward a national recognition of virtual notarization, regardless of where the notary or officer of the court is registered or located.
Where Does Your State Stand?
If you’re planning to depose a witness in another jurisdiction via electronic means, have your court reporter check your state’s remote swearing-in requirements and, if necessary, contact a notary in the deponent’s state of residence to remotely administer the oath.
Below is a list of states that have modified regulations regarding remote swearing-in and/or notarization. Keep in mind that the majority of state rules are tied to emergency orders and will expire when the emergency ends. It’s best to check with the state in question to get the current status of their procedural requirements.
For a detailed, updated list of state legislation regarding remote depositions and notarial acts, please visit the website of Perkins Coie.