Retired Partner, Jones Day
Remote depositions have been permitted by the Federal Rules of Civil Procedure in some form since at least 1980. The 1980 Amendments to the Federal Rules permitted depositions using telephones. In 1993, the rules were further amended to allow the use of telephones or other remote means as now incorporated in Rule 30(b)(4). The change in 1993 was to include the possibility of depositions using satellite television. Despite the availability of the remote deposition, the practice was seldom utilized, except for minor matters. Most lawyers prefer to be in the same room with the witness they are questioning or defending. Even when remote depositions were used, the court reporter would always be in the same room as the deponent to ensure that the proper person was responding to questions.
COVID-19 forced changes in the litigation landscape. For a while, cases were halted. Then, realizing that the virus was lasting longer than anticipated, courts required parties to continue to prepare their cases for trial. Continuing discovery in an environment in which everybody was seeking to avoid contracting and spreading a virus meant that depositions could not be taken in person. The solution was to conduct the deposition remotely. Several vendors offered remote deposition services and some lawyers resorted to commercial applications such as Zoom. Various jurisdictions adopted processes to allow the court reporter to also participate remotely.
Remote depositions have now become a part of the process and the skilled litigator must be prepared to participate in them. These remote depositions pose unique issues. This article addresses some of those issues and will assist the litigator in preparing for the remote experience.
A: Lower cost and increased lawyer time arising from lack of travel are the primary advantages to remote depositions. The time it takes to travel to a deposition location along with the associated expenses add significantly to the overall deposition cost. And, the travel time is returned to the lawyer for other uses. The question that the deposition taker must answer is whether those cost and time benefits outweigh the potential impact on the deposition.
A: Quantifying the downsides of a remote deposition is hard. The issues that arise are all qualitative and difficult to ascribe a particular value. However, experienced deposition takers will swear that having the witness in the same room as the questioner has extraordinary advantages. Principally, those advantages relate to the human element that comes from close proximity. For example, the questioner and the witness may develop a certain rapport from exchanges that occur off the record. The questioner may achieve a certain rhythm to their questioning that leads to more favorable answers or be able to create extra pressure on a difficult witness by their mere physical presence in the room. A questioner in the room with a witness may also assess non-verbal cues from the witness’s behavior and the behavior of others in the room. Adding distance and technology to the deposition equation may also create an easy excuse of misunderstandings or miscommunications. Technology will fail at some point.
A host of logistical issues also have to be considered in the remote deposition. How do you handle exhibits? What about the quality of the Internet connection for all parties? How does the witness get sworn in? How do you assure yourself that others are not in the room with the witness? What about distractions? Remote depositions require consideration of these and other issues not present in the in-person setting.
A: Check the rules of your court to see what procedures have been adopted for remote depositions. Most courts have adopted rules governing the remote deposition process besides those contained in the published rules. Those rules, mostly temporary, clarify that the court reporter need not be physically in the same room as the deponent. Various methods have been adopted for the court reporter to assure the identity of the witness. Most often the witness must provide and show a government-issued identification that satisfies the court reporter. Many temporary orders also require that the government-issued identification also be captured on the video record. However, those orders generally do not specify whether the video record requires a separate videographer or whether the video record may be satisfied by recording done by the platform used for the remote deposition. Make sure to clarify that issue, if necessary, under the local rules governing remote depositions in the appropriate jurisdiction.
A: Selecting the right software platform will be critical to the success of the remote deposition. There are lots of options available and it is impossible to endorse a single option for all situations. Every deposition will have its own complexities and needs. Some platforms will exclude the use of tablets or phones and require more technological skill than others. Not all platforms will have intuitive and easy-to-use controls. And, platforms will vary greatly in how they display, mark, and store exhibits.
So how should you approach the platform selection? First, decide whether there are advantages to using a single platform for all depositions. If there are such advantages, opposing parties must be consulted and agree on the final platform selection. The advantages of a single platform for the entire case mainly involve achieving familiarity with the platform as the case proceeds and the ability to store, track, and retrieve exhibits from one deposition to the next. Using multiple platforms requires greater flexibility from the lawyers to learn the platforms and to manage exhibits from deposition to deposition. The single platform will have more features and likely be more expensive than other options. A single platform can handle the most complex expected depositions. Complexity involves not only the number of parties that will participate but also the number of documents that will need to be shown to the witness. In considering the platform, the ability to allow the witness to make notations on the exhibits, and to save those notes, must also be considered.
Second, assuming a single platform has not been selected, decide on the number of exhibits and how you will need to use those exhibits during the deposition. If exhibits only need to be shown to the witness and all other counsel, a simpler, cheaper platform may suffice. Even a platform widely used for video conferencing, like Zoom or Webex, might handle your needs. The advantage of the video conferencing platforms are the general public use and the corresponding familiarity with the programs’ operation. On the downside, the public platforms lack friendly ways to share and mark up exhibits. Imagine the difficulties of asking a witness to relate events by using a map with no ability to mark specific locations on that map.
Third, any platform selected must allow the attorney to practice with its features in a dry run setting. No taking lawyer wants to deal with the platform while also trying to take a deposition. Do you want a real-time transcript to show as the deposition is being taken? If so, know in advance where that transcript will show on the screen. Know whether the transcript will interfere with the view of the witness and/or exhibits. Some third-party platforms provide a support person along with the platform during the deposition. Will that person be necessary? It is hard to answer that question in advance and particularly hard to answer if the lawyer has not practiced with the platform in a mock deposition.
The best platform selection may involve the lawyer for the other side, the cost of the platform, and a full understanding of the platform’s capabilities and limitations. Do not discover the capabilities and limitations during the actual deposition. Be proactive and explore the options available well in advance.
A: There are a host of issues to consider. While perhaps an incomplete list, any remote deposition requires consideration of:
A: Remote depositions require more preparation time well in advance of taking a deposition. The substantive preparation remains the same, but there is the added level of selecting and mastering the platform. As the taking lawyer gains experience with the platform, some of that time will shorten. The taking lawyer must remember, however, that every deposition will likely be the first for the witness, requiring extra time to make sure the witness has the technology to make the deposition happen. Always test the systems of all parties participating in a remote deposition in advance!
Even after the technology has been tested, expect deposition day failure and have your back up plans in place. Once the questions begin, remember to follow the general deposition guidelines provided throughout the rest of this book.
This excerpt was taken from the updated Depositions Answer Book (2021 Edition), available from PLI Press. The Answer Book helps you master the crucial deposition process, delivering practice-based guidance on all stages of the deposition.
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