Are You Ready For Remote Depositions? Adjusting To The New Normal Of Litigation

Suzanne Galvin | Thompson Coburn

As a FEMA certified counselor for 12 years, I discussed the concept of adjusting to the “new normal” with those who have experienced floods, tornadoes, earthquakes, even war. This pandemic marks the first time I’ve applied these same talking points to my own life and career.

One key to healthy recovery is information. It is power in uncertain times. That’s why we’ve seen governments conducting COVID briefings during the pandemic. As a counselor entering a disaster site, I made sure I was armed with information so those suffering knew where to get the resources they needed—water, food, clothing, trash pick-up schedules, etc. By having this basic knowledge, people feel empowered to get on with their “new normal.”

Likewise, litigators have seen a shift in their practice as a result of the COVID-19 pandemic. What used to be common practice—cramming lawyers into conference rooms with witnesses, court reporters and videographers, just can’t happen safely in these unprecedented times.

Remember when you were a new litigator taking your first deposition? That is how some of you may feel as you face video conference depositions. You may have done them, but outside of mass toxic tort scenarios, not very frequently. This article is intended to serve as a resource, a checklist of sorts, to assist you as you think through your next video deposition. Careful planning will allow you to continue to provide the excellent representation your clients expect, and avoid common pitfalls as you navigate this new environment.

Preparation

As you prepare for the upcoming deposition, it is helpful to coordinate with opposing counsel as much as possible. Topics to discuss include technology, protective orders and drafting not only a notice of deposition, but also a stipulation memorializing how the deposition will take place.

Thank goodness the pandemic has come when we have the technology to handle remote depositions. That said, not all platforms are equal. Zoom is free, flexible and easy to use; however, it has a reputation of not being as secure as other sites. As a result, some firms actually prohibit its use. WebEx is also easy to use, flexible and secure, but it is not free. Skype is another alternative frequently mentioned, but it too depends on the level of sophistication of the parties and deponent. So, choosing the right platform is the first step to take, and may involve some initial negotiation.

Once the platform is chosen, it is important to check the bandwidth available to each attendee. For example, will the party be attending from their home office or a home in rural setting? I am currently involved in an environmental case where the local plaintiff’s lawyer didn’t have Wi-Fi in his conference room, let alone a platform for remote depositions. Negotiating these situations in advance will be time-consuming but commonplace, and may even eat up the cost savings of not traveling to depositions.

Of course, a technology check before the start of the deposition needs to be worked into the planning. Be sure to set the deposition at a reasonable hour and have an agreement to check the technology at least 15-20 minutes in advance so any bugs can be worked out (a day before would be ideal.) Does the microphone work? Is the connection stable? Is the camera sufficient?

Real-time transcripts are relatively new, but in this environment where it may be more difficult to catch the nuance of an answer, they are no longer optional. Reading the answer as the court reporter is recoding it will be vital and should eliminate surprise caused by a poor connection—just  a bit of insurance for you as you prepare the case.

Terms of the deposition

As mentioned, a stipulation covering the depo arrangements may be necessary. Remote depositions are allowed under Federal Rule 30(b)(4), and almost all local rules. Typically, local courts have also issued COVID-19 orders that may be cited as authority for the proceeding. It used to be mandatory the swearing of the witness was done in person, or the entire deposition was invalid and inadmissible. Best practice would be to include in your stipulation the fact the parties agree the remote swearing of the witness is valid for trial and impeachment.

In addition to date, time and place of each attendee, be sure the stipulation also includes a prohibition of other items of technology available to the witness during the course of the deposition (turn off their cellphone and Apple watch), other programs open on the laptop and designate other people allowed to be in the room with the deponent.

If information covered in the deposition is confidential, and a protective order is in place, be sure all attendees have signed the protective order in advance of the deposition. If there is no protective order in your case, think ahead to whether a protective order may be necessary just for the scope of the deposition. Avoiding surprises the day of the deposition is the name of the game.

Exhibits and their use is probably the stickiest point in a remote deposition. If the litigation has been fairly straightforward, an exchange of documents via FedEx a set number of days in advance of the deposition will work; some depositions have taken place with these arrangements. In other cases, you should check with your court reporter. Some court reporters allow a file to be created for each deposition and a sub-folder that is confidential created for each attorney. During the deposition, the attorney can move any document from their private folder and have it marked as an Exhibit. The downside is it allows for “surprise” documents, but the upside is that this eliminates confusion about Exhibits during the deposition.

Considerations during the deposition

If the technology check hasn’t been done, be sure to set this up early (court reporters request minimum of 30 minutes in advance) and verify good video, audio and a stable connection. Verify the court reporter has Real Time and can hear well enough to transcribe.

Verify the exhibits are accessible to the witness, all counsel and the court reporter.

Include in the stipulation that the deposition will not begin until all counsel are present. Plan ahead for technical difficulties, including a provision that a suspension of the deposition will take place should any counsel lose their connection.

A trickier issue arises when some counsel are present with the witness, but others are attending remotely. Will PPE be required? Will social distancing be necessary? Will both sides be allowed to have representation? The response to this will likely vary from case to case and witness to witness. Obviously, with COVID-19, witnesses with underlying health concerns or over the age of 60 would have different considerations than a younger or healthier witness. In some cases, all or nothing may be proposed—that is, a designated lead counsel from each side is present, with other counsel attending remotely.

As the deposition begins and the witness is sworn, assuming you are remote, remember to position your webcam so you can be seen clearly by a judge/jury if the deposition is played at trial. Face a window. Have a blank wall behind you. Dress as though in trial. You should also make a record about the stipulation or protective order that’s in place. This should include an agreement that remote swearing in is acceptable for trial and impeachment purposes later.

When the witness begins answering, ask them to use the camera to show who else is in the room with him/her. Ask them to verify other forms of technology are turned off.  Also be sure no other programs are running on their computer. Verify no other audio or video recordings are being made. Ask these questions again after each break.

Ask the witness to verify they can hear and see you and have them agree to report it immediately if they have any trouble hearing or seeing or an exhibit as the deposition progresses.

As previously mentioned, exhibits are probably the most difficult part of the remote deposition. As the Exhibits are marked, be sure to keep careful copy of each Exhibit and the number it is assigned. This may take a little extra time, but it will be worth it when assembling the materials later.

Best practice is to avoid communication with the witness once the deposition begins. One in-house counsel we recently spoke to wants everyone to know—the chat feature on Zoom can be seen by all parties. So, even though you break into “rooms” in Zoom, your conversation may be recorded/seen by everyone. Be careful not to disclose any privileged information and also be sure to avoid anything that could be interpreted as “coaching” the witness.

The deposition ‘takes place” in the location where the deponent is located. Rule 30(b)(4). So, consult the rules of that jurisdiction well in advance of the deposition in order to prepare for issues that might arise, particularly if you expect issues with time, exhibits, or technology.

Clean-up at the end of the deposition

At the conclusion, make a record about the conditions and what has transpired. If there is a 7-hour limit (Rule 30 FRCP) and the time the deponent has been deposed is at issue, make a record what time has been used and how it has been calculated. If there was confusion over exhibits, take the time to review them on the record for clarity. If technical issues arose, review on the record how they were dealt with. Finally, as always, f you represent the deponent, include a request to read and review before signing. It will be more important than ever to review with your witness and have them complete an errata sheet in a timely manner. FRCP30(e)(1) allows 30 days from notice of the transcript. When RealTime is available, or when the “rushed copy” is first provided, calculating 30 days from the date of RealTime transcript would be safest bet.

Conclusion

In sum, the remote depositions we are now conducting will soon become normal for us. In the meantime, as we adjust, we encourage you to keep the checklist we’ve prepared handy as you set up your next deposition. Welcome to the “new normal.”

Don’t Conspire to Build a Home…Wait…What?

Ben Volpe | Colorado Construction Litigation

In 1986, the Colorado General Assembly enacted the Pro Rata Liability Act, codified at C.R.S. § 13-21-111.5, which eliminated joint and several liability for defendants in favor of pro rata liability.[1] The statute was “designed to avoid holding defendants liable for an amount of compensatory damages reflecting more than their respective degrees of fault.”[2] However, the following year, the Colorado legislature carved out an exception to preserve joint liability for persons “who consciously conspire and deliberately pursue a common plan or design to commit a tortious act.”[3] Because of this conspiracy exception, plaintiffs try to circumvent the general rule against joint and several liability by arguing that construction professionals defending construction defect cases were acting in concert, as co-conspirators. Plaintiffs argue that if they can prove that two or more construction professionals consciously conspired and deliberately pursued a common plan or design, i.e., to build a home or residential community, and such a plan results in the commission of a tort, i.e., negligence, the defendants may be held jointly and severally liable for all of the damages awarded.

Since 1986, Colorado courts have construed the “conspiracy” provision in § 13-21-111.5(4), but some have disagreed as to what constitutes a conspiracy for purposes of imposing joint liability.

Civil Conspiracy

In Colorado, the elements of civil conspiracy are that: “(1) two or more persons; (2) come to a meeting of the minds; (3) on an object to be accomplished or a course of action to be followed; (4) and one or more overt unlawful acts are performed; (5) with damages as the proximate result thereof.”[4]

With respect to the fourth element, Colorado adheres to the view that “[t]he gist of [a civil conspiracy] action is not the conspiracy charged, but the tort working damage to the plaintiff.”[5] In Contract Maintenance Co. v. Local No. 105, the Colorado Supreme Court stated “the purpose of the conspiracy must involve an unlawful act or unlawful means.”[6]

In Pinon Sun Condo. Ass’n, Inc. v. Atain Specialty Ins. Co., a condominium association hired a public adjuster for the claims process and a construction company to conduct estimates and repairs after the condominiums sustained hail damage.[7] After a dispute over the amount of the claims paid, the association sued the insurers for breach of contract, among other claims.[8] The insurers counterclaimed, alleging fraud and civil conspiracy against the association, the public adjuster, and the construction company.[9] In its Order Granting in Part and Denying in Part Motions for Summary Judgment, the court granted summary judgment in favor of the association, public adjuster, and construction company on the fraud claim because the insurers failed to prove one of the elements of fraud.[10] Noting that the fourth element of a civil conspiracy requires an unlawful overt act, the court also granted summary judgment in favor of the association, public adjuster, and construction company on the civil conspiracy claim because the insurer failed to prove fraud, which was critical to showing an unlawful overt act.[11] Thus, although the association, public adjuster, and construction company acted in concert with one another, no conspiracy existed because no unlawful act or unlawful means in furtherance of a conspiracy existed.

Conspiracy in the Construction Context

However, in construction defect cases, the fourth element of civil conspiracy is not so clear.

In Resolution Trust Corp. v. Heiserman, the Colorado Supreme Court opined that “although the execution of a common plan or design may in many circumstances not result in wrongful conduct causing injury or damages,” . . . it may in some circumstances result in a tort such as negligence, causing injury or damages.[12] Thus, joint and several liability may be imposed on two or more persons pursuant to C.R.S. § 13-21-111.5(4), even when the conspiracy results in the tort of negligence.

Although the language of Heiserman appears to say that one may “conspire” to be negligent and thus be held jointly and severally liable, trial courts will not equate lawful contracting to do construction and design work with tortious conspiracy, absent some other evidence of tortious conduct. Indeed, Heiserman held that for joint and several liability to be applied, the trigger for liability had to be based on something other than a breach of contract.[13] The following cases help define the contours of this issue.

Rivergate Lofts Condo. Owners Ass’n v. Rivergate Lofts Partners, LLP: A tort must be reasonably foreseeable to result from the agreement.

On a partial summary judgment motion regarding joint and several liability in a construction defect case, La Plata County District Court Judge David Dickinson concluded the Colorado Supreme Court’s discussion in Heiserman regarding whether an agreement must include intent to commit a tort is dicta.[14] Judge Dickinson further concluded “as a result of the agreement, it must at a minimum be reasonably foreseeable that the agreement will result in the commission of tortious acts in furtherance thereof.” Id. at *7. Thus, due to a lack of evidence of agreement to violate the building code in the design-build agreement, Judge Dickinson found no conspiracy existed and granted partial summary judgment in favor of the construction company defendant. Id.

Villas at La Campanella Property Owners v. Hunnahs, LLC et al.: Benign cooperation does not establish joint liability.

In another La Plata County case, on a defendant’s motion for determination of a question of law regarding joint and several liability, Judge William Herringer determined that construction defect defendants would not be held jointly and severally liable because the plaintiff homeowners association was unable to establish facts to show the defendants agreed, in any way, to engage in tortious conduct.[15] More specifically, the judge acknowledged that the plaintiff presented factual evidence that the defendants worked together and coordinated closely on the construction project. However, the judge stated:

[That defendants worked together] is unsurprising and would be expected for a project of this nature. However, the mere fact that there were cooperative efforts and communication is insufficient for the imposition of joint liability. While the Plaintiff does not need to show that the defendants had the “specific intent” to commit a tortious act, the Plaintiff must produce some evidence of a “common plan or design” that results in the commission of a tort. Benign cooperation with a tortfeasor does not make a defendant jointly responsible for the tortfeasor’s misconductOne who innocently, and carefully, does an act which happens to further the tortious purpose of another is not acting in concert with the other.”[16]

Polmer et al. v. Hi Point Home Builders LLC et al.: Lawful contracting to build a home is not in and of itself a C.R.S. § 13-21-111.5(4) conspiracy.

In Polmer v. Hi Point Home Builders, El Paso County District Court Judge William Bain also ruled on a motion to determine a question of law regarding joint and several liability in a construction defect case.[17] In this case, RMG engineers designed the grading and excavation plans for a new development, conducted soils testing, and provided the structural designs and observation and compliance services for construction of the homes.[18] Ruling against joint and several liability, Judge Bain found that the plaintiff provided insufficient evidence that RMG “conspired” with the other construction defendants to recommend a new design, or that the construction defendants conspired to market the home fraudulently or build it defectively, based merely on the fact the parties lawfully contracted with each other.[19]

Conclusion

Taken together with Heiserman, the cases are clear on this point: Parties cannot be said to conspire when they have merely engaged in lawful contracting.[20] However, each case presents “unique factual circumstances” and “detailed factual findings will be necessary” to make a determination of whether any given contractual relationship among construction professionals will rise to the level of conspiracy under C.R.S. § 13-21-111.5(4).[21]


[1] James W. Avery, The Pro Rata Liability Act and Imposition of Joint Liability Against Physicians, Colo. Law., 2/98, at 89.

[2] B.G.’s, Inc. v. Gross ex rel. Gross, 23 P.3d 691, 694 (Colo. 2001).

[3] C.R.S. § 13-21-111.5(4). This is also known as “actions in concert,” which is broader than civil conspiracy, not requiring express agreement or proof of intent to commit a tortious act. Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049, 1056-57 (Colo. 1995).

[4] Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175, 1186 (D. Colo. 2002).

[5] Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995) (quoting Prosser and Keeton on the Law of Torts § 46, at 324 (5th ed. 1984)).

[6] Contract Maintenance Co. v. Local No. 105, 415 P.2d 855, 857 (Colo. 1966) (en banc); see also Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995) (en banc) (An unlawful overt act is a required element of civil conspiracy.).

[7] Pinon Sun Condo. Ass’n v. Atain Specialty Ins. Co., No. 17-cv-01595, 2019 WL 4747673, at *1 (D. Colo. Sept. 27, 2019).

[8] Id. at *2.

[9] Id.

[10] Id. at *4-6.

[11] Id. at *9.

[12] Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995).

[13] Heiserman, 898 P.2d at 1055 (“We conclude that the term ‘tortious act’ appearing in section 13–21–111.5(4) includes any conduct other than breach of contract that constitutes a civil wrong and causes injury or damages.”).

[14] Rivergate Lofts Condo. Owners Ass’n v. Rivergate Lofts Partners, LLP, No. 10CV19, Order on Motion for Partial Summary Judgment of Defendants Okland and Sill, at *6 (La Plata Ct. Dist. Ct. Oct. 4, 2011).

[15] Villas at La Campanella Property Owners v. Hunnahs, LLC et al., No. 13CV30099, Order Granting Defendant ABC Welding, Inc.’s Motion for Determination of a Question of Law Regarding Joint and Several Liability, (La Plata Ct. Dist. Ct. Aug. 21, 2015).

[16] Id. at *2-3 (internal citations removed & emphasis added).

[17] Polmer et al. v. Hi Point Home Builders LLC et al., No. 2013CV30763, Order: (Proposed) Order: re: Motion for Determination of a Question of Law Regarding Joint and Several Liability, (El Paso Ct. Dist. Ct. Oct. 15, 2015).

[18] Polmer et al. v. Hi Point Home Builders LLC et al., No. 2013CV30763, First Amended Complaint at ¶¶ 16-19, (El Paso Ct. Dist. Ct. Oct. 15, 2015).

[19] Polmer et al. v. Hi Point Home Builders LLC et al., No. 2013CV30763, Order: (Proposed) Order: re: Motion for Determination of a Question of Law Regarding Joint and Several Liability, at *2 (El Paso Ct. Dist. Ct. Oct. 15, 2015).

[20] See also Logixx Automation, Inc. v. Lawrence Michels Family Trust, 56 P.3d 1224, (Colo. App. 2002) (“[W]e conclude that there can be no conspiracy by two or more parties to a contract to breach that contract.”); In re Stanley, 2011 WL 10656536 (E.D. Cal. July 1, 2011) (“[A] party to a contract cannot be bootstrapped into a conspiracy tort.”). “The claim of civil conspiracy . . . requires proof of an unlawful intent.” Nelson v. Elway, 971 P.2d 245, 250 (Colo. App. 1999). Joint and several liability cannot be imposed “for doing in a proper manner that which they had a right to do . . . .” Id.

[21] Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1057 (Colo. 1995).

Judicial Council Ends Tolling Of Statute Of Limitations To Bring Civil Suits, Effective Aug. 3

Jennifer Hernandez, Daniel Golub and paloma Perez-McEvoy | Holland & Knight

The California State Judicial Council amended California Rule of Court, Emergency Rule No. 9, on May 29, 2020, lifting its previously adopted indefinite tolling of the limitation period to bring civil lawsuits. The amended rule now provides that limitation periods of 180 days or less will be tolled only until Aug. 3, 2020, allowing project applicants to begin to plan and get financing so that development can proceed this year.

The Judicial Council issued emergency rules of court to address the COVID-19 pandemic on April 6, 2020, one of which – Emergency Rule No. 9 – tolled the statute of limitations for all civil actions from April 6, 2020, until 90 days after the date that California’s governor lifts the statewide COVID-19 state of emergency. Because the state of emergency declaration could remain in effect for a year or more, and since most developers cannot proceed to obtain financing until the period to bring litigation has lapsed, the effect of the rule was to indefinitely pause housing and other development – even while “shelter in place” orders are lifted and housing construction was declared an “essential activity” exempt from those orders.

Holland & Knight worked with a broad coalition of more than 50 trade groups, planning associations, affordable housing providers, business associations, charitable organizations, infill developers, advocacy groups and nonprofit organizations to urge the Judicial Council to amend Emergency Rule No. 9. The California Building Industry Association and the California Chamber of Commerce joined with leaders in the affordable housing nonprofit community and the “Yes In My Backyard” movement to stress the importance of allowing housing development to continue in light of the state’s unprecedented housing crisis.

In response to opponents who urged that tolling of litigation deadlines remain in effect indefinitely, the Judicial Council’s amendment keeps tolling in effect far longer than most housing advocates consider justified, but the rule does set a date when the tolling period will end. Statutes of limitations of 180 days or less – such as the 30-day to 35-day deadline for most California Environmental Quality Act (CEQA) challenges, and the 90-day limitations periods in the Planning and Zoning Law as well as the Subdivision Map Act – will be tolled only from April 6, 2020, until Aug. 3, 2020. Longer statutes of limitations remain tolled until Oct. 1, 2020.

Even after Aug. 3, project applicants and public agencies will still need to wait for the remaining number of days left in applicable statute of limitations to run. Additionally, project applicants and public agencies seeking to invoke the CEQA statute of limitations should be mindful of the need to keep CEQA notices posted for the full statutory period, as well as to consider the provisions of Executive Order N-54-20, which states that it suspends the filing requirements for CEQA notices until June 22. (See Holland & Knight’s Breaking Ground Blog, “California Executive Order Suspends Certain CEQA Noticing and Posting Requirements,” April 27, 2020.)

Illinois Supreme Court Affirms School District Must Pay for Emergency Construction

Kelly K. Koss | Barnes & Thornburg

Public construction projects in Illinois can be fraught with legal loopholes and “gotchas” that can take hard earned money out of the pockets of construction workers. Back in December, we wrote about the cautionary tale of Proviso East High School. In that case, the school district attempted to avoid making any payments over and above insurance proceeds for $7.3 million of emergency construction work that was performed to repair a high school following a fire loss. 

The construction contracts at issue were signed by the school superintendent and the board received regular updates on the work. There were no objections to the price or the quality of the work when it was performed. But the school district then refused to pay on the ground that the contracts were void from the beginning because the school board did not follow the bidding-and-approval process required by the Illinois School Code. In the school district’s view, this was the construction company’s problem because the contractor had the responsibility in the first instance to make sure that the people it was dealing with had proper authorization before proceeding. 

The trial court agreed with the school district and dismissed the case on the ground that the construction contract was void. The trial court also held that the contractor could not recover based on a contract implied by law (quantum meruit). The appellate court reversed, finding that the affected contractors could sue based on a contract implied by law for the value of the work. 

The Illinois Supreme Court’s decision affirms the appellate court’s decision. The Supreme Court first held that the school board did not act beyond its statutory authority when it entered into the contracts. The decision observed that a Financial Oversight Panel (FOP) was managing the school district’s finances at the time the construction contracts were entered into, and the FOP had the authority to regulate the procedure for entering into contracts – not the school board. In addition, the school code provides that its “enumeration of powers is not exclusive,” and also specifically exempts the expenditure of funds for emergencies from the normal bidding process where the expenditure is approved by three-quarters of the board. 

The Supreme Court then concluded:

“While the actions taken by the Board in handling the emergency repair and restoration work at Proviso East may not have comported with the procedures set forth in the School Code, hiring a contractor to do such work, as the Board did here, is unquestionably among the types of action Illinois school boards are authorized to undertake. The contractor, Restore, performed its obligations in good faith, and the Board willingly accepted the benefits of Restore’s efforts without question or complaint.”

The decision also holds that the contractor was entitled under the circumstances to recover the value of its work based on a contract implied by law. According to the Court:

“Illinois courts have similarly recognized that the failure of a governmental unit to comply with the required methods for awarding contracts is not fatal to a plaintiff’s right to recover based on principles of quasi-contract or contract implied in law. The essence of a cause of action based upon a contract implied in law is the defendant’s failure to make equitable payment for a benefit that it voluntarily accepted from the plaintiff. Even where a governmental unit has not complied with its policies and procedures for awarding contracts, recovery may be had against it if the plaintiff can show that it furnished valuable goods or services, which the defendant received under circumstances that would make it unjust to retain without paying a reasonable sum in compensation.”

Finally, the Supreme Court concluded that any problem with the formation of the contracts was caused by the school board’s own “misconduct,” and that fundamental principles of Illinois law will not permit a party to seek to take advantage of its own wrongdoing: 

“A fundamental precept of Illinois law is that no one shall be permitted to take advantage of his own wrong. Allowing the Board to escape responsibility for paying what it owes based on its own misconduct would directly contravene this core principle and reward school districts for failing to adhere to the law. That is not a precedent we should set, particularly where, as here, the school board has had such difficulty managing its own financial affairs that it has been forced to operate with State oversight for more than a decade.”

Although the Illinois Supreme Court has made it clear it will not allow a public entity to hide behind contracting technicalities to escape payment for work performed under an improperly formed agreement, contractors should still act with caution. Contractors that are contemplating contracting with a public entity should consult an attorney to navigate the complex bidding requirements for such work. 

“Deposition Distancing”: Practical Considerations for Defending Remote Depositions

David Abernethy, Kaitlyn E. Stone, Joseph Tanner and Adrienne Franco Busby | Faegre Drinker Biddle & Reath

Lawyers continue to work during the COVID-19 pandemic.  As we discussed in a previous post, for litigators this may involve participating in remote depositions as courts attempt to keep discovery moving. We also provided tips for lawyers taking remote depositions. With thanks to our Faegre Drinker colleagues who have ventured into this new world and shared a great deal of useful advice with the authors, here we discuss some of the practical considerations for lawyers defending remote depositions.

Preparing your witness requires that you cover all the usual issues – plus those unique to remote technology. For example, you normally would advise the witness not to bring notes or files, but for a remote deposition it is also important to remind the witness not to look at, or offer to look things up for the purpose of answering by using, e-mails or files on his computer or phone, or information available at the Internet.  (That actually happened in a recent deposition.) Tell your witness to turn off the phone, close browser windows on the computer, disable chat or text alerts, and otherwise shut down other technology that might be distracting.

Determine what consultation is permitted during the deposition or at breaks, and make sure you have arrangements to consult privately. Some vendors have technology that provides a separate “virtual room” for lawyers, witnesses and co-counsel to caucus – but be sure you know how to use it, so you don’t inadvertently share your discussion with the other side. (The lower-tech solution is to have the witness move physically to another room and call you on the phone – but make sure you mute your audio for the videoconference platform, again so the other side can’t overhear your discussion.)

When giving the usual advice to pause before answering, emphasize this is especially important in videoconferencing because of the brief “lag” sometimes experienced with the technology.

As with any deposition on video, you will advise your witness about appropriate attire, facial expression, body language and so forth. But for a remote deposition you will need to work with the witness on other “appearance” issues in videoconferencing, such as:

  • Choosing a quiet environment away from extraneous noise (if the testimony is given from home, make sure the children and dogs are elsewhere).
  • Placing the witness to be seen clearly (e.g., not sitting with her back to a bright window so she is lit from behind and her face appears only as a shadow).
  • Choosing a background that isn’t distracting or inappropriate. (You want the jurors listening to the witness, not reading the book titles on the shelf behind him, admiring his garden through the window or focusing on an unmade bed.)
  • Placing the camera so the jury isn’t looking up or down at the witness or otherwise seeing her from an odd angle (remind the witness to stay in a good position in relation to the camera and not lean in or away or cover the lens; if the witness is using a portable webcam perched on top of a monitor, be alert to the witness “falling out of frame” and alert her to reposition if needed).
  • Maintaining poise and composure, especially when there are technology “glitches” (the best advice is to imagine an audience sitting in the room watching at all times).

When preparing a witness for remote deposition – especially if the preparation is done remotely – extra time and effort may be needed to make the witness comfortable with the process. Start well in advance of the deposition date and set aside more time for preparation than usual.