It may soon be easier to take deposition and trial testimony from remote witnesses. Growing confidence in the use of real-time communications equipment to take the testimony of witnesses located elsewhere has generated proposed amendments to Florida’s rules of court procedure that may incentivize the use of such equipment—by allowing witnesses to be sworn in remotely. Currently, the rules require an officer who is legally authorized to administer oaths to swear in the witness while in the physical presence of the witness. This can be inconvenient, as officers may not be readily available where the witness is located. A witness who wishes to testify via television from her home or office, for example, could not do so unless the witness is before an officer who can swear her in. To eliminate such inconveniences, The Florida Bar’s Civil Procedure Rules Committee (CivPRC) and Rules of Judicial Administration Committee (RJAC) are proposing changes to Florida Rules of Civil Procedure 1.310 (Depositions Upon Oral Examination) and 1.451 (Taking Testimony) and Florida Rule of Judicial Administration 2.530 (Communication Equipment) that eliminate the physical presence requirement when testimony is taken by audiovisual communications equipment.
The CPRC’s and RJAC’s joint proposal provides, inter alia, that a remote witness can be sworn in remotely (i.e., through a television screen) when audiovisual equipment is used to take testimony. If the equipment used is not audiovisual (e.g., it is telephonic), the officer still must be present with the witness to administer the oath. The proposals do not affect who can administer oaths and the requirement that the officer who administers oaths be authorized to do so in accordance with the laws of the jurisdiction where the witness is located, as these are matters of statutory law.
Although the proposals do not extend to out-of-state witnesses, they are a boon to residents and businesses of Florida’s vast territory. From the comfort of her home, for example, a witness in Pensacola with the proper technology could provide testimony to lawyers in Miami without needing to meet an officer solely for the purpose of being sworn in. The witness need not, furthermore, testify elsewhere solely because of the physical presence requirement. The witness can be sworn in from the lawyers’ office and show photographic identification if necessary (potentially saving time and costs to witnesses and litigants). Upon agreement of the parties, the testimony could be taken through readily-available audiovisual equipment, provided it can be recorded and transcribed as required by existing rules of court. The CivPRC’s and RJAC’s proposals, therefore, may encourage the taking of audiovisual testimony from remote witnesses located throughout Florida.
By coincidence, the Juvenile Court Rules Committee of The Florida Bar (JCRC) already petitioned the Florida Supreme Court to amend the Florida Rules of Juvenile Procedure to allow witnesses to be sworn in remotely when either audiovisual or audio equipment is used. A major beneficiary of these proposals would be the Florida Department of Children and Families, whose attorneys regularly use the Rules of Juvenile Procedure, and their clients: families in turmoil and children at risk. The Department often relies on child-protection workers, physicians, therapists, psychologists, and others who are willing to testify remotely on short notice, from different locations, and at different hours. Sometimes, these witnesses cannot testify remotely because there is no authorized officer nearby to swear them in. Given such circumstances, eliminating the requirement that they be present before an officer to be sworn in would significantly expedite and facilitate the Department’s work. The JCRC’s proposals, therefore, would benefit families and the state by fostering timely and cost-effective expert testimony.
On Aug. 28, the Florida Supreme Court held oral argument on the JCRC’s proposals and whether they conflict with existing rules of court and should be coordinated with the CivPRC’s and RJAC’s forthcoming proposals. A key issue is whether the administration of oaths should be uniform regardless of the type of litigation involved. The Supreme Court has not issued a decision. But the general idea underlying the different proposals appears to have been well received.
The proposed changes to the Florida Rules of Civil Procedure and Florida Rules of Judicial Administration will be published for comment in the Dec. 1, edition of The Florida Bar News.
Miguel J. Chamorro is a partner at Lydecker Diaz in Miami and serves as vice chair of the Civil Procedure Rules Committee of The Florida Bar. Any opinion expressed herein is solely the author’s.