Massachusetts Superior Court Opinion Encourages Broader Use of Audiovisual Depositions

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“The litigation process is — or should be — a search for the truth.”

So said a Superior Court judge recently in an opinion allowing a motion to take audiovisual depositions. See Littlewood v. Fed. Realty Investment Trust, et al., 2014 WL 6712468, *1-2 (Mass. Super. Ct. Sept. 1, 2014). Notably, the successful motion asked that all parties be permitted to take video depositions and stipulated that the party seeking the video deposition would pay recording costs and provide a copy of the unedited recording to other parties free of charge. Id.

Video depositions are not the norm in Massachusetts state court practice. See Mass. R. Civ. P. 30A (allowing audiovisual depositions only with leave of court). By contrast, the Federal Rules of Civil Procedure permit, as a matter of ordinary course, the party noticing a deposition to videotape the deposition without prior approval from the court. See Fed. R. Civ. P. 30(b)(3). The federal procedure “reflects recognition of the fact that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records.” Littlewood, at *1 (internal quotation omitted)..

Despite the clear benefits of videotaped depositions, the Littlewood opinion points out that Massachusetts is one of only two states that still require court permission before a party may conduct an audiovisual deposition. Id., at *2. The opinion calls the Massachusetts preference for a simple paper transcript “archaic” and notes that words on a page cannot “impart[]…quality or vitality to the spoken word.” Id. According to the Littlewood decision, the distinction between a paper transcript and a videotape is not just about making the use of depositions at trial more exciting; it goes to the heart of the fact-finding process:

“Facial expressions, voice inflections, intonation, gestures, and body language all enrich the experience of the deposition and ultimately advance the litigation process’s search for the truth. This information enables jurors to render a more informed decision.” Id.

The Littlewood case may signal a turning of the tide in Massachusetts with regard to audiovisual depositions, and this development warrants a review of Mass. R. Civ. P. 30A, which sets out the requirements for taking audiovisual depositions in Massachusetts state court cases.

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