Online Depositions Performed By Online Notaries((Copyright © 2019 George Nicholas and Matthew C. Darby, All Rights Reserved))
By: George F. Nicholas and Matthew C. Darby ((George F. Nicholas is CEO and co-founder of Apian Systems, LLC, a technologist, systems designer and attorney licensed in Texas and associated with the law firm Burt Barr & Associates, LLP. Matthew C. Darby is CTO and co-founder of Apian Systems, a computer scientist, systems designer, programmer, and lead developer. Both George Nicholas and Matthew Darby have traditional and online notary public commissions issued by the Texas Secretary of State. NOTARY.IO is a domain name owned by and registered to Apian Systems. NOTARIY.IO is an online notary software platform. See: https://notary.io/ and Texas Online Notary Law and Technology: https://apiansystems.com/cloud-services/texas-online-notary-law-and-technology/ ))
Introduction. This article discusses applicable Texas Rules of Civil Procedure and statutes authorizing a Texas online notary public to administer oaths to witnesses online and conduct online non-stenographic video-recorded depositions((Tex. R. Civ. P. 199.1(c) Non-stenographic recording)) and depositions upon written questions((R. Civ. P. 200. Depositions Upon Written Questions)) through remote electronic means((Tex. R. Civ. P. 200.1(b) requiring compliance with Tex. R. Civ. P. 199.1(b) Depositions by telephone or other remote electronic means. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction.)).
Technology. To conduct online depositions the online notary would use the same software platform the notary uses for electronic affidavits and acknowledgments since those notarial acts require the identification portion of the process to be done through a two-way videoconference that is recorded. For a non-stenographic deposition, a minimum of four parties (online notary, witness, plaintiff’s counsel, and defendant’s counsel) each would utilize their computer’s webcam and internet browser and link to the platform wherein four separate video streams are recorded. The administration of the oath and deposition Q & A would be done remotely through an online videoconference. Highly accurate machine transcription – through natural language processing software – from audio recording to text could occur in near real-time.
Benefits Of Using An Online Notary To Conduct Depositions. The benefits for the client or an insurance carrier realized through online depositions are efficiencies and cost savings. The benefit for the law firm representing a client on an hourly fee basis is additional billable time for the firm’s paralegal or legal assistant (who is also commissioned as an online notary public) whereas using a third-party service is merely a cost pass-through from firm to client. The benefit for a firm representing a client on a contingency fee basis is a meaningful reduction in the amount of case cost carry prior to settlement since the paralegal or legal assistant (who is also an online notary public) is already employed full time and additional cost outlay to a third- party service is avoided.
Online Notary May Perform All Notarial Acts. The Texas Government Code was amended effective July 1, 2018, to allow online notarizations.((Tex. Gov’t Code § 406.101, et seq. Subchapter C, Online Notary Public)) An online notary is a traditional notary who has applied and received an online notary commission issued by the Texas Secretary of State.((Tex. Gov’t Code § 406.101(10) – “Online notary public” means a notary public who has been authorized by the secretary of state to perform online notarizations under this subchapter. 1 TAC § 87.1(9) – Traditional Notary Public means an individual commissioned by the secretary of state under Subchapter A, Chapter 406 of the Government Code. A traditional notary public does not have the authority to perform an online notarization unless also commissioned as an online notary public. 1 TAC § 87.1(5) – Online Notary Public means an individual commissioned by the secretary of state as an online notary. An online notary has authority: (A) as a traditional notary public; and (B) to perform an online notarization as provided by Subchapter C, Chapter 406 of the Government Code and this chapter.)) An online notarization is a notarial act performed by means of two-way audio and video conferencing technology that complies with the rules and standards promulgated by the Secretary of State.((Gov’t Code § 406.101(9) “Online notarization” means a notarial act performed by means of two-way video and audio conference technology that meets the standards adopted under Section 406.104. Tex. Gov’t Code § 406.104 – STANDARDS FOR ONLINE NOTARIZATION. (a) The secretary of state by rule shall develop and maintain standards for online notarization in accordance with this subchapter, including standards for credential analysis and identity proofing. (b) The secretary of state may confer with the Department of Information Resources or other appropriate state agency on matters relating to equipment, security, and technological aspects of the online notarization standards.))
An online notary may perform all of the notarial acts of a traditional notary and is authorized to take acknowledgments, protest instruments, administer oaths, take depositions and certify copies of documents not recordable in the public records.((Gov’t Code § 406.101 (8) – “Notarial act” means the performance by an online notary public of a function authorized under Section 406.016. Tex. Gov’t Code § 406.016 – AUTHORITY. (a) A notary public has the same authority as the county clerk to: (1) take acknowledgments or proofs of written instruments;(2) protest instruments permitted by law to be protested; (3) administer oaths; (4) take depositions; and (5) certify copies of documents not recordable in the public records. (b) A notary public shall sign an instrument in Subsection (a) in the name under which the notary public is commissioned. (c) A notary public may not issue an identification card. (d) A notary public not licensed to practice law in this state may not give legal advice or accept fees for legal advice.))
Online Notary Is Authorized To Administer Oaths. An Online Notary is authorized by the Texas Government Code to administer oaths in Texas, within the United States and outside of the United States((Gov’t Code Ann. Chapter 602. ADMINISTRATION OF OATHS: Sec. 602.001. DEFINITION. In this chapter, “oath” includes the oath in an affidavit. Sec. 602.002. OATH MADE IN TEXAS. An oath made in this state may be administered and a certificate of the fact given by: … (5) a notary public; Sec. 602.003. OATH MADE OUTSIDE TEXAS BUT INSIDE UNITED STATES. An oath made outside this state but inside the United States or its territories may be administered and a certificate of the fact given by:…(3) a notary public. Sec. 602.004. OATH MADE OUTSIDE UNITED STATES. An oath made outside the United States and its territories may be administered and a certificate of the fact given by:.. (3) a notary public.”)).
Online Notary Is Authorized To Take Depositions. Tex. Gov’t Code § 406.016 – authorizes a notary to take a deposition and Tex. Civ. Prac. & Rem. Code Ann. § 20.001(a)(3) authorizes a notary to take a deposition on written questions.((
Gov’t Code § 406.016 – AUTHORITY. (a) A notary public has the same authority as the county clerk to:
…(4) take depositions….” Tex. Civ. Prac. & Rem. Code Ann. § 20.001. Persons who may take a deposition
A deposition on written questions of a witness who is alleged to reside or to be in this state may be taken by:
a clerk of a district court; (2) a judge or clerk of a county court; or (3) a notary public of this state.
A deposition of a witness who is alleged to reside or to be outside this state, but inside the United States, maybe taken in another state by: (1) a clerk of a court of record having a seal; (2) a commissioner of deeds appointed under the laws of this state; or (3) any notary public. (c) A deposition of a witness who is alleged to reside or to be outside the United States may be taken by: (1) a minister, commissioner, or charge d’affaires of the United States who is a resident of and is accredited in the country where the deposition is taken; (2) a consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States who is a resident of the country where the deposition is taken; or (3) any notary public…”))
Online Notary May Remotely Comply With Rule 199.1(b). A witness physically appears before a traditional notary at the time of notarization in a manner permitting the notary and the principal to see, hear, communicate and give identification credentials to each other. In an online notarization, the principal personally appears in a videoconference that complies with statute and rules.((1 TAC § 87.1 (6) – Personal appearance or personally appear means: (A) when performing a notarization other than an online notarization, the principal for whom the notarization is being performed physically appeared before the notary public at the time of the notarization in a manner permitting the notary public and the principal to see, hear, communicate and give identification credentials to each other; and (B) for an online notarization, the principal for whom the notarization is being performed appears by an interactive two- way audio and video communication that meets the online notarization requirements as provided by Subchapter C, Chapter 406 of the Government Code and this chapter)) An online notary must be physically in Texas at the time of the online notarization.((1 TAC 87.41(b) – An online notary public shall not perform an online notarization if the online notary public is not physically in Texas at the time of the notarization.))
Rule 199.1(b) allows depositions by telephone or other remote electronic means… and [t]he officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction. An online notary, under law, is present with the witness appearing before the notary in an online two-way audio and video conference wherein the notary first conducts identity proofing of the witness and then conducts the notarial act of administering the oath to the witness. The online notary, as the officer taking the deposition, may then proceed to conduct the online deposition by remote electronic means in compliance with the rules.
Conclusion: Paralegals and legal assistants who are Texas notaries regularly administer oaths and prepare written testimony as affidavits for clients and other witnesses. If they become commissioned as Texas online notaries they can do the same tasks efficiently by remote electronic means. We have shown in this article that online notaries may also efficiently and cost-effectively administer oaths remotely and conduct online depositions.