Motion for dual recording of deposition denied

Defendant’s motion for a protective order, which would allow separate but simultaneous recordings of a deposition, is denied.

Only one a-v

“Section (d)(1) of Rule 4:7A states, ‘Any deposition may be recorded by audio-visual means without a stenographic record. The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter will also be deemed an official record of the deposition. Any party may make, at its own expense, a simultaneous stenographic or audio record of the deposition. Upon request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording.’

“That Rule states that while an audio-visual recording is being made, a simultaneous stenographic or audio record can also be made. The plain meaning is that another and separate audio-visual recording is not authorized to be made simultaneously. The Rule meaningfully relies on the singular, rather than the plural, term for the recording.

“Va. Sup. Ct. R. 4:5(b)(7) further provides that ‘[u]less the court orders otherwise, a deposition may be taken by telephone, video conference, or teleconferencing. A deposition taken by telephone, video conferencing, or teleconferencing must be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded by him.’

“This Rule does not contemplate redundant or duplicative processes and contemplates a single appropriate officer before whom the deposition is taken.

“Va. Sup. Ct. R. 4:7A(b)(1) contemplates a procedure by which a single operator must make statements that fully identify the proceedings, the parties, and witnesses.

“Reading the Rules altogether, this Court concludes that to assure the integrity of the process, there should be only one operator of any particular method of recording, and therefore redundant processes that are not different processes are not contemplated under the Rule.

“However, where there is a single operator and that operator is using different equipment to capture the deposition, the Rules, as presently constituted, do not limit the operator with respect to the number of cameras, or equipment such as a camera on one hand and a computer with an activated Zoom meeting on the other hand.”

Zoom boom

“Due to the COVID-19 pandemic, business and communication through Zoom has become a norm. Plaintiff notes that Zoom depositions have a number of benefits, such as Zoom’s ‘picture-in-picture’ feature, where the video can display and record the witness as well as the exhibit they are viewing. Plaintiff also notes various downsides and potential risks that come with using Zoom when counsel for one party is not present in the room where the deposition is taking place.

“All of the problems and risks highlighted above may be remedied with the presence of multiple audio-visual recordings operated by a single videographer. Defendant’s concerns about which recordings or videos will be used at the trial and the ‘cost and lack of necessity of multiple video recordings’ are presently outweighed by the Virginia Supreme Court’s Declaration of Judicial Emergency and the judicial perspective that conducting trials or pre-trial proceedings in a manner that promotes the public health are to be liberally observed.”

Motion denied.

Lemus v. Talbert, et al., Case No. CL 2019-0016141, April 2, 2021, Fairfax Cir. Ct. (Tran) (Order) VLW 021-8-051, 3 pp.