Coronavirus impacts even the taking of depositions in Illinois

Before the world ended, Illinois Supreme Court Rule 206(h) provided:

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition.

(3) Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4) The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

Now, at the end of the world, any depositions will be remote depositions.

And the old rule runs afoul of new social distancing requirements -- requiring the court reporter to be with the witness, for example.

So, yesterday, the Illinois Supreme Court issued a new, temporary Rule 206(h) (new language indicated by underscore, deleted language indicated by strikeout):

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) Reserved. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition, unless the deposition participants are able to view the exhibits in real time during the deposition.

(3) Reserved. Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4)The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

(5) Time spent at a remote electronic means deposition in addressing necessary technology issues shall not count against the time limit for the deposition set by Rule 206(d), by stipulation, or by court order.

(6) No recording of a remote electronic means deposition shall be made other than the recording disclosed in the notice of deposition.

Even lawyers are beset by technical difficulties (actually I think we may be more prone to these than most) -- so the new rule wisely provides that technical difficulties will not count against the three-hour deposition time ordinarily permitted for depositions.

Also note the order stresses that no recording other than that provided for by notice will be permitted -- although you have to wonder who is going to take a video deposition of a picture on a laptop in the first place....

We are now all involuntary experts in Zoom -- and recordings can be made of Zoom meetings.

But not legally.

Court proceedings are now taking place every day on Zoom -- and the Circuit Court of Cook County has made it abundantly clear that "any video recording, audio recording, photographing and/or reproducing of the livestream is strictly prohibited. The recording, publishing, broadcasting or other copying or transmission of courtroom proceedings by video, audio, still photography or any other means is strictly prohibited by Illinois Supreme Court Rule 68(A)(8) and is subject to the penalties for contempt of court."

In other words, don't do it.

And, while we're on the subject of don't do it, the Supreme Court issued a comment with the new, temporary rule 206(h):

Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b)he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.

An attorney who produces a client or other witness for deposition without properly admonishing the witness along these lines may wind up with an ARDC beef if it develops that the witness had a coach or some other undisclosed crutch off camera.