Video Deposition Rules to Follow

During depositions, witnesses provide testimony and are cross-examined during the discovery phase before a case goes to trial. In a video deposition, an audiovisual recording is part of the official record, alongside a transcript produced by a professional court reporter who captures all spoken words in text. 

While depositions are structured as part of the research leading to the big event—the trial—in reality, they’re the one-and-only incidence of testimony for most witnesses. According to a study by the American Judges Association, 97% of civil cases end outside of the courtroom, either in dismissal, abandonment, or most commonly, settlement. (1)

With the accessibility of recording technology and the import of depositions, video recording is a wise choice—so let’s look at the video deposition rules you need to be aware of.

Video Depositions under the Federal Rules of Civil Procedure 

In the United States, civil cases in federal district courts operate under the Federal Rules of Civil Procedure. There are two rules specific to depositions and their use in court:

Rule 30, Depositions by Oral Examination

Rule 30 covers how depositions are scheduled and taken. Regulations specific to video depositions include: 

• The deposing attorney must indicate the recording method in the notice of deposition (1)
• Unless the court indicates otherwise, audiovisual recording is an approved method
• The deposing party is responsible for covering the cost of the recording
• Any party can arrange and pay for alternate video recording with notice to all parties

To be used as an official record of the proceeding, the court reporter in attendance must: 

• Make a formal introductory statement at the start of each unit of recording (2)
• Complete the oath or affirmation to the deponent on camera
• Make a closing statement confirming the deposition’s end

Additionally, Rule 30 states that the “deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques”—so no filters, Photoshopping, or other alteration of the original.

Rule 32, Using Depositions in Legal Proceedings

While most civil cases end in negotiated settlements, those that make it to court look to Rule 32 for how depositions are introduced and used at trial. Specific to video depositions, note: 

• If deposition testimony is introduced at trial, any method of recording can be shown (3)
• If the format is other transcribed text, a deposition transcript must accompany the recording
• If the testimony is used in a jury trial, and a nonstenographic form (video or audio) is available, any party can order it shown (unless the testimony is used for impeachment)

State Rules of Civil Procedure

Each state follows its own court procedural rules, with 35 having adopted the use of the Federal Rules of Civil Procedure either wholly or with very minimal alteration. (4) The 15 remaining states may have additional regulations that apply more specific guidelines, such as the notification and use of video depositions. 

For instance, the California State Bar requires deposing attorneys to state whether they reserve the right to present the recording at trial in the original notice of deposition. (5)

Can You Object to a Video Deposition?

In short—no, not effectively. If a witness, expert witness, or client simply dislikes being videotaped, it doesn’t outweigh the usefulness of a video recording in the eyes of the legal system. A video recording of a deposition is considered the right of any party to a lawsuit.

However, if the deposition notice didn’t indicate that the proceeding would be recorded, then the deposing attorney did not comply with federal Rule 30 (which states they must indicate recording method in the notice of deposition). (2)

In this case, if a videographer shows up, the deponent or their attorney may refuse to allow the recording. If the deposing attorney pushes back, the objecting party can move to terminate the proceeding on the grounds that it’s being conducted in bad faith under Rule 30(d)(3). (2)

The Difference Between a Video and Video Conference Deposition 

Remote depositions are common these days but still fall under the rules of in-person legal proceedings—you can’t simply click the “record” button on a video conference. 

Essentially, a video conference is a remote deposition, but a video deposition is when a legal videographer captures a professional recording of the proceeding. These videos can be done for both remote or in-person depositions. 

U.S. Legal Support: Video Depositions Done Right

Video depositions are useful, common, and allowable under state and Federal Rules of Civil Procedure. There are specific guidelines on how the recording must begin and end, the on-camera swearing-in of the deponent, and providing advance notice that videography will be employed. 

Be sure you’re familiar with any specific regulations in your state and know your rights when the opposing counsel deposes your client or witness. 

Looking for more information or help in scheduling or preparing for a video deposition? 

U.S. Legal Support is an established, nationwide provider serving lawyers and law firms of all types and sizes. We connect you to a network of 5,000+ court reporters and also offer record retrieval, interpreting and translation services, and litigation consulting. 

Reach out today to discuss your video deposition and other legal support services. 

Sources: 

1. Brown & Charbonneau, LLP. What Factors Make It Harder To Settle A Civil Case? https://bc-llp.com/factors-make-harder-settle-civil-case/
2. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
3. Cornell Law School. Rule 32. Using Depositions in Court Proceedings. https://www.law.cornell.edu/rules/frcp/rule_32
4. USLegal. Rules of Civil Procedure. https://civilprocedure.uslegal.com/rules-of-civil-procedure/
5. Sacramento County Public Law Library. Discovery Depositions. https://saclaw.org/wp-content/uploads/sbs-discovery-depositions.pdf

Julie Feller

Julie Feller is the Vice President of Marketing at U.S. Legal Support where she leads innovative marketing initiatives. With a proven track record in the legal industry, Juie previously served at Abacus Data Systems (now Caret Legal) where she played a pivotal role in providing cutting-edge technology platforms and services to legal professionals nationwide.