Our Supreme Judicial Court has issued an order on the remote administration of oaths at depositions. By way of background, in most US litigation, the officer who administers the oath at a deposition is usually a notary public. At least in Massachusetts, a notary cannot administer an oath remotely: the deponent must take the oath in the notary’s presence. However, under the Massachusetts Rules of Civil Procedure, a commissioner (a person commissioned by the court to take the deposition) has the power to administer oaths by virtue of the commission. The same is true under FRCP 28(a)(1)(B). The new order provides that any person before whom the deposition is to be taken can administer the oath remotely, as long as he or she “can both see and hear the deponent via audio-video communication equipment or technology for purposes of positively identifying the deponent.” The order does not, as I read it, automatically appoint anyone as a commissioner, but it reminds litigants that they can stipulate that a deposition can be taken before any person, and that the person designated by the parties does have the power to administer oaths. So the effect, I think, is that the parties should now stipulate that the deposition be taken by the court reporter of their choice, and that that person will then have the power to administer oaths remotely.
The order makes it significantly easier to take remote depositions in Massachusetts state-court litigation. The federal courts could and maybe should take a similar step. The problem is a little dicier with depositions abroad. Under FRCP 28(b)(1)(D), any person commissioned by the court can administer an oath and take the testimony, but no doubt litigants will want to make sure that they are not running afoul of the law of the country where the deposition is being taken, which in some cases prohibits commissioners or anyone but local officials from administering oaths. It would be good and in the interest of public health for such states to consider temporarily waiving such bans so as to make it easier for litigants in cross-border cases to take depositions remotely. I’m not sure that is practical, particularly on a relatively short timescale, but I am going to suggest it to some folks in the hope that we international judicial mavens can make a small difference.