In response to the COVID-19 pandemic, the Chief Justice of the Supreme Court of Georgia, issued an Order Declaring Statewide Judicial Emergency pursuant to OCGA § 38-3-61. That Order has been extended four times, with modifications. The Statewide Judicial Emergency Order clarifies that while remote proceedings are encouraged litigants may expressly consent in the record to remote proceedings not otherwise authorized and affirmatively waive otherwise applicable legal requirements.
O.C.G.A. § 9-11-30(b)(4) states: Notwithstanding the foregoing provisions of O.C.G.A. § 9-11-30(b), a deposition may be taken by telephone or other remote electronics means only upon the stipulation of the parties or by order of the court. For purposes of the requirement of the Civil Practice Act, a deposition taken by telephone or other remote electronic means is taken in the state and at the place where the deponent is to answer questions.
While opposing counsel may attempt to schedule a remote deposition during this pandemic, under Georgia law, one has a right to push back against taking a remote deposition. O.C.G.A. § 9-11-30 (b)(4), expressly states to proceed with a remote deposition all parties must agree. Furthermore, the agreement must be placed on the record. The attorney who is attempting to hold the remote deposition must show an exceptional good cause on how he/she will be prejudice if the deposition is rescheduled.
An option one can use, to place on the record your objection to participating in a remote deposition is to file a motion for Protective Order. A motion for a protective order should be filed as soon as a party learns it cannot comply with the discovery request and knows it needs a protective order. Millholland v. Oglesby, 115 Ga. App 715 (Ga. App.1967). A motion for protective order must be filed before the due date for the discovery or the date that the deposition is to be taken, and not afterwards. Id.
If you have an upcoming remote deposition (stipulated by all parties) scheduled, below are some practical tips to take prior to the scheduled deposition.
Virtual Deposition Vendor: use a vendor who has the capability to conduct the entire deposition remotely.
Equipment: all participants will need internet access on a computer/tablet with audiovisual capabilities.
Exhibits: while most vendors have exhibit sharing capabilities, counsel should prepare hard copies and send the exhibits to the witness and opposing counsel.
Recording: Counsel will need to hire a separate videographer to film the deposition if a recorded video deposition is needed.
Court Reporter: Counsel will need to notify the vendor which geographical location the court reporter will be located.
As more courts move towards remote depositions in light of the COVID-19 pandemic, know the rules for remote depositions in your jurisdiction.