The following procedure shall be observed in recording an audio-visual deposition:
The opening statement, if oral, shall be made by the officer before whom the deposition is to be taken, unless counsel agree that one of counsel will make the statement.
During the taking of the audio-visual deposition, the officer shall assure that the audio-visual tape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise. In no event shall the officer use, or permit the use of, audio-visual tape camera techniques to vary the view which is being recorded for presentation in the courtroom unless agreed upon or ordered by the court as recited above. As an exception to the foregoing, the officer shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit or visual aid to be taken while the witness is being questioned concerning the exhibit.
Upon the request of any of the parties, the officer shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape or other form of audio-visual recording, an audio recording, or a written transcription.
The party desiring to use the audio-visual deposition for any purpose shall be responsible for assuring that the necessary equipment for playing the audio-visual recording back is available when the audio-visual deposition is to be used. When an audio-visual deposition is used during a hearing, a trial, or any other court proceeding, the party first using such audio-visual deposition in whole or in part shall assure the availability of the same or comparable audio-video playback equipment to any other party for such other party’s use in further showing such audio-visual deposition during the hearing, the trial, or other court proceeding or at any rehearing, recess, or continuation thereof.
Mass. R. Civ. P. 30A
Reporter’s Notes:
(1996): With the merger of the District Court civil rules into the Mass. R. Civ. P., Rule 30A of the Mass. R. Civ. P. governing audio-visual depositions is made applicable to District Court proceedings.
(1989): These amendments accompany the simultaneous amendment adding Mass. R. Civ. P. 30A(m), which creates a new category of videotape depositions called “audio-visual expert depositions for trial.” See Reporter’s Notes to Proposed Amendment Adding Mass. R. Civ. P. 30A(m). That amendment will make audio-visual depositions a more frequent occurrence. In considering the addition of Rule 30A(m), it made sense to make some clarifications for all audio-visual depositions. The provisions of Rule 30A(a)-(l) apply to audio-visual expert depositions for trial except when altered by Rule 30A(m). Mass. R. Civ. P. 30A(m)(6).
The amendment to Mass. R. Civ. P. 30A(c) gives the party taking any audio-visual deposition the responsibility for assuring that the necessary equipment is available at the time the deposition is taken. The amendment to Mass. R. Civ. P. 30A(i) requires the party first using an audio-visual deposition in whole or in part to be responsible for providing the necessary play-back equipment for the use of all parties at such hearing, trial, or any other court proceeding or “at any rehearing, recess, or continuation thereof.”.
The amendment to Mass. R. Civ. P. 30A(d) adds to the recording officer’s duties the obligation to assure “that the audio-visual tape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise.” The purpose is to make the audio-visual deposition as close as possible to what the fact-finder would see and hear if the witness were present in the courtroom.
Mass. R. Civ. P. 30A(c), (d), and (i) are otherwise left intact, except for appropriate changes to the titles in Rules 30(d) and (i) which reflect the additions.
The amendments borrow in part from a similar rule in South Carolina (S. C. Cir. Ct. Prac. R. 99C.(4) and 99K.).
Rule 30A deals generally with “Audio-visual Depositions and Audio-visual Evidence.” This amendment adds a new set of provisions dealing specifically with “Audio-Visual Depositions of Treating Physicians and Expert Witnesses for Use at Trial.”.
Delays in court have been a substantial problem in the Commonwealth. Many lawyers and judges believe that a major reason for the seeking and granting of continuances in the past has been the unavailability of expert witnesses and treating physicians on the day set for trial. Unlike Rule 30A(k)(1), which requires prior court approval for the use of audio-visual testimony at the trial, the amendment authorizes such use with respect to a party’s own treating physicians and expert witnesses or neutral treating physicians and expert witnesses whom that party intends to call at trial as that party’s own witness, regardless of whether the witness is available to testify in person, unless the court orders otherwise. Rule 30A(m)(5). The goals are to eliminate a major reason for continuances; to facilitate intelligent settlement, since the lawyers will know in advance that the testimony of such expert or treating physician will be available for the trial; and to aid physicians and other experts in more predictably scheduling and efficiently utilizing their time.
The amendment does not apply to “another party’s treating physician or expert, discovery from whom is subject to the provisions of Rule 26(b)(4)(A) or 26(b)(4)(B).” Rule 30(m)(1).
The amendment covers both treating physicians and experts, because there may be occasions when a treating physician’s testimony relates only to observable facts and not expert opinion. The amendment’s inclusion of the treating physician, whether or not the physician’s testimony is technically that of an expert, should both help to eliminate disputes over the boundary between fact and opinion and to meet the other goals of the amendment, such as eliminating a major reason for continuances.
Because such audio-visual testimony is in lieu of live testimony, the amendment contains a number of protections for the opposing party, e.g., notice in advance that the audio-visual deposition is for the “purpose of its being used as evidence at trial in lieu of oral testimony” (Rule 30A(m)(3) ); the requirement that a curriculum vitae and a report covering “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion,” and, in the case of a treating physician, providing a description of the treatment and its costs, be furnished to all parties at least thirty days before such audio-visual deposition (Rule 30A(m)(2) ); the ability to move for a discovery deposition prior to the audio-visual expert witness deposition (Rule 30A(m)(2) ); the ability to move to oppose the deposition before it is taken, with the deposition stayed until the court rules on the motion (Rule 30A(m)(3) ); and detailed provisions for the ruling on objections and the editing of the audio-visual recording (Rule 30A(m)(4) ).
Rule 30A(m)(5) permits a party either to use live testimony of the treating physician or expert, or the audio-visual expert witness deposition for trial, but not both. However, if a party chooses to use the live testimony of the witness, the opponent may still cross-examine and use portions of the audio-visual expert witness deposition for trial for appropriate purposes.
Except where this amendment changes the audio-visual deposition rules for this specific type of deposition for use at trial, the remaining provisions of Rule 30A apply. Rule 30A(m)(6). Consequently, all of Rule 30A applies to audio-visual expert witness depositions for trial, except the first sentence of Rule 30A(a) (requiring prior leave of court or stipulation of all parties to authorize the deposition), the provisions of Rule 30A(g) (Rulings on Objections, Editing of Recording), and Rule 30A(k)(1)(2)(3) (Evidence by Audio-Visual Recording). Rule 30A(k)(4), making any portion of an audio-visual recording introduced at the trial part of the record, but not an exhibit, is applicable to audio-visual expert witness depositions for trial. Although Rule 30A(b) (Notice) is applicable to Rule 30A(m) depositions, Rule 30A(m)(2) adds an additional requirement related to the timing of such deposition (requirement of written report) and Rule 30A(m) requires additional information in the notice for the taking of such deposition.
There may be occasions when a party becomes aware of the need for an audio-visual deposition of a treating physician or expert witness at a time too close to trial to permit compliance with all of the provisions of Rule 30A(m). The discretionary motions under Rule 30A(a) and 30A(k)(1), and the court’s authorization under Rule 30A(k)(2), remain available to meet such emergency situations.
The amendment borrows in part from a similar rule in New Jersey (N.J. Civ. Prac. R. 4:14-9) and from a paragraph of the South Carolina videotaped deposition rule (S. C. Cir. Ct. Prac. R. 99 I.). The definition of “expert witness” (30A(m)(1)) is derived from a portion of Fed. R. Evid. 702 and Proposed Mass. R. Evid. 702.
(1984): This amendment permits a court to authorize in advance of trial, or at the trial, the use of an audio-visual recording as testimony or other evidence “in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.” The major purpose of this rule is to permit judges to prevent the delay of trials which often occurs in order to accommodate the schedule of witnesses, particularly experts. Rule 30A(k)(3) makes the obtaining of rulings on objections and the editing of the audio-visual recordings subject to the provisions of 30A(g). Rule 30A(k)(4) provides that any portion of the audio-visual recording that is introduced “shall be part of the record, but not an exhibit.” This is so testimony by audio-visual recording is not accorded more weight than live testimony. Rule 30A(k)(4) makes any portion of the audio-visual recording that is introduced subject to the transcription and marking provisions of Rule 30A(h).
Even without a Rule 30A(k)(1) order, one may still be able to use an audio-visual deposition at trial pursuant to the provisions of Rule 32(a). (See Rule 30A(i).).