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FMG Law Blog Line

California’s New Normal: Electronic Service and Remote Depositions

Posted on: September 25th, 2020

By: Marshall Coyle

Prior to California Governor Gavin Newsom approving Senate Bill 1146 on September 18, 2020, California law provided that, for cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document was permitted if a party or other person has expressly consented to receive electronic service in that specific action, or if the court had ordered electronic service on a represented party or other represented person.

Senate Bill 1146 requires a party represented by counsel, who has appeared in an action or proceeding, to accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. The bill requires a party represented by counsel, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, to electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

Prior California law required a party deponent to appear at a properly noticed deposition and be in the presence of the deposition officer. It authorized a court to expressly provide that a nonparty deponent may appear at a deposition by telephone if the court found there was good cause and no prejudice to any party. It authorized a court to issue a protective order with respect to the conduct of a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.

Senate Bill 1146 deletes the provision authorizing a court to provide that a nonparty deponent may appear by telephone. It instead authorizes the deponent or the deposing party to elect to have the deposition officer attend the deposition by telephone or other remote electronic means. It specifically provides that a deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition, and that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court.

If you have questions or would like more information, please contact Marshall Coyle at [email protected].

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