An amendment to the Massachusetts Rules of Civil Procedure will set the course for remote depositions in the Commonwealth, establishing a new normal for post-COVID civil practice. The impact stands to empower Massachusetts attorneys to chart their own pathway toward effective depositions. This is particularly true for remote depositions.
How we got here.
As previously discussed in our Proposals and Public Comment series, Massachusetts considered opposing views on how to best handle depositions. The social distancing caused by COVID-19 ushered in a new era of remote depositions. And this proved to be a popular development. A 2022 survey highlighted in a previous blog post showed that 80.5% of Massachusetts attorneys supported codifying remote depositions, while 65.1% supported codifying remote oaths. Fast forward to present day, and the Commonwealth of Massachusetts has decided to make room for remote depositions and remote oaths by replacing state civil procedure rule 30(b)(4).
What is Noticer’s Choice?
This new approach to depositions, effective as of February 1, 2025, centers on “noticer’s choice,” a concept recognized in Rule 30(b)(4)(A), which effectively strikes a compromise between default in-person depositions and remote depositions as a matter of right. Rather than choose one over the other, noticer’s choice empowers noticing parties to make the decision for themselves:
“[B]y notice of the party seeking to take the deposition, a deposition may be taken in a civil case remotely by video-conferencing platform (video-conferening deposition) in a manner that allows for the deponent, all other persons entitled to attend, and all other necessary persons (e.g., the officer/court reporter) to participate without attending the deposition in person.” Massachusetts Rule of Civil Procedure 30(b)(4)(A) (amended).
As discussed in the Reporter’s Notes, “Noticer’s choice would enable the party seeking the deposition to decide in the first instance whether the deposition would be taken in person or remotely.”
How this new rule impacts remote depositions moving forward.
According to the Reporter’s Notes, this newly constructed Rule 30(b)(4) lays certain “ground rules” for conducting remote depositions. In short, those ground rules:
- require that notices identify both the platform and information necessary to access the remote deposition;
- reaffirm the previously court-ordered authorization to administer oaths remotely;
- require that platforms track and identify each participant to the remote deposition through individual log-in credentials; and
- authorize remote video-recording for remote depositions.
But the heart of Massachusett’s Rule 30(b)(4) may be the incorporation of Rule 29 principles for party stipulation. Specifically, Rule 30(b)(4)(D) states that parties “may stipulate to taking a deposition in a manner that modifies the procedures set forth in this rule.” To do this, Rule 30(b)(4)(D) requires parties to confer and cooperate with respect to conducting the remote deposition.
Readback is ready to serve.
Readback is a remote non-stenographic service that’s already ahead of the game when it comes to Massachusetts depositions. Readback’s Multi-Intelligence Service Team blends state-of-the-art technology with a human Guardian to conduct the proceeding and human transcribers to verify accuracy of the record. This provides an empowering deposition experience that aligns with the spirit of noticer’s choice. Readback participants are provided individual log-in credentials to access the remote deposition, and the Guardian appears remotely to ensure the process runs smoothly, assist with exhibits, and address any technological questions or concerns participants may have.
And that’s just the beginning. Readback’s flagship service, Active Reporting, offers rough drafts in one hour, certified transcripts in one day, and access to near-time text during the proceeding with the use of the Readback Viewer. All of this is provided at flat rates.
By embracing noticer’s choice, the amended Massachusetts Rule 30(b)(4) gives decision-making power to the noticing party to determine how they wish to conduct their deposition. It’s your choice. Make it a good one with Readback. Schedule your next deposition with us today.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
