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Justice Delayed is Justice Denied: The Merits of Remote Depositions in COVID-19 Times

In any language, time is the biggest asset anyone can have. A businessman may lose all his money; but if he still has time, he may straighten his finances and get it all back. On the other hand, a worker who doesn’t know a skill may not be able to get a job. But if he still has time, he can learn the ropes and eventually master that skill. It’s the same thing in the justice system. Time is the most important asset. Reason enough why people who are convicted are told to “do time”.

But time can also become a negative factor. Case in point: wrongful convictions. When a convicted felon does time for a crime that he did not actually do, time served is perhaps the most painful memory of his walking life on the planet. The sad part is for all the wrong reasons, it happens.

The same holds true for justice that is delayed. When a crime has been committed, it is the duty of the criminal justice system to punish the perpetrators. The problem is the COVID-19 pandemic is causing delays. But not if remote depositions can’t help it. Check out the essentials below.

Delaying Deposition

A deposition is a part of building a case; it’s an integral part of uncovering the truth. The taking of out-of-court sworn testimony is a key portion of the discovery process, the pre-trial process of a lawsuit. Some states prefer using the term examination before trial (EBT) instead of deposition.

This process is a long back-and-forth as witnesses for and against the accused will have to be examined. In civil cases, the person to be examined called the deponent will be served a subpoena to appear at an appropriate time and place. Sheriffs can serve the subpoena. However, as sheriffs have tons of duties to do, preferred process servers have been the go-to method to deliver legal notice to deponents. Not only are process servers dedicated to the job of delivering notices, but many of them have a nationwide reach (unlike the local sheriff) allowing for a more efficient system. And better results.

gavel courtroom

However, as the virus has pounded the nation, depositions faced a great challenge. It would seem that justice will be delayed for many cases, if at all. Think about it. As stay-at-home orders are in place, witnesses became unavailable one by one. Many, fearing the virus, cited health reasons.

When depositions are delayed, so does the whole trial process. And as the pandemic has raged on for a year now even to this day, the delays can multiply and add up over time. In short, the justice system is facing a stumbling block. And justice is bound to be delayed.

Remote Depositions to the Rescue

The good news is remote depositions are allowed by law. Federal Rule 30, permits remote depositions using audio-video technology. Specifically, federal civil rules detail that a deposition may be taken by “telephone or other remote means.”

That should allow the swift administration of needed justice despite the virus. But not without dissent.

A case should bring this all in perspective. In the case of Ogilvie v. Thrifty Paylessa joint motion by both parties was filed so as to extend the deadline of the court citing of course the delaying effect of COVID-19 on both parties’ ability to do depositions. It seems a fair request.

But the Western Court of Washington court thought otherwise. Looking at the inability of both parties to make use of remote depositions, the court expressed pointedly the need for both parties to do so. It cited the possibility that the pandemic may not end soon and may therefore be a force to contend with for months to come. Not using remote depositions therefore is inexcusable. Adding to that, the court stipulated that the existence of the pandemic is not a ‘good cause’ to delay the schedule of the case.

Both parties must therefore exhaust all alternative means to make the depositions happen. And that means making the most of remote depositions.

The same thing happened in the Southern District of California. In the case of the United States vs. K.O.O Construction, Inc., the court also went against the motion of both parties to move the discovery deadline to another 60 days due to the lockdown orders ordered in California. The parties further cited that there is a need to do depositions in-person as architectural drawings and project plans cannot be reviewed effectively via videoconferencing.

Added to that, both parties cited that in-person depositions will be available soon as physical distancing and stay-at-home orders may be rescinded if not lessened in the near future. The court, however, noted that no one can tell for sure when the pandemic and its effects will end. In the meantime, remote depositions should do the trick. And justice should not be delayed.

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