Remote Depositions in the Post-Covid-19 World

Islam m. Ahmad | Wilke Fleury

Remote Depositions in the Post-COVID-19 World

Despite the easing of COVID-19 restrictions in California, many of the changes imposed on the legal industry by the pandemic will likely remain in effect for the foreseeable future. One major change for litigators has been conducting depositions remotely. This change takes an already intricate task and makes it further complex by adding a new dimension of factors to consider. It is imperative that litigators understand these factors to avoid giving their opposition an undue advantage and to maximize the utility of depositions. While we may disagree as to whether remote depositions are a welcome change, the fact of the matter is that lawyers must adapt to them and provide adequate legal representation. This article explores some of the challenges and opportunities presented by remote depositions.

  1. The Deponent

The deponent is the single most important element of any deposition and handing it properly becomes even more delicate in remote settings. I recently took a deposition where the plaintiff met their attorney for the first time at their deposition. The result was not spectacular. The plaintiff was ill-prepared, and the case eventually settled for far less than what it might have if it had been better prepared.

In some cases, deponents testify remotely without their attorneys’ physical presence. This may make them feel less protected and more vulnerable. To manage this risk, additional preparation is necessary. On the other hand, for attorneys taking depositions, this presents an opportunity to elicit testimony otherwise not possible, especially if a defending attorney is distracted in their home or office during long depositions.

Remote depositions require attorneys to be especially vigilant to safeguard against improper influence. The risk of information being conveyed to the deponent by their attorney or others is increased when the deponent is miles away from the attorneys with unlimited access to technology. Attorneys must be innovative and attentive to manage this risk. Steps that can be taken include having the deponent sit alone in a closed room, viewing a 360-degree angle of the deponent’s room before the deposition, and requesting that the deponent’s hands be in clear view of the camera during the deposition.

  1. Preparation

The margin for error is even smaller when preparing for remote depositions. Exhibits must be well-prepared, pre-marked, and, in some instances, sent to the other parties in advance. As such, early preparation is not an option. Attorneys must be strategic in determining how and when they share the exhibits with the other parties. During the deposition, attorneys must be able to seamlessly electronically shuffle between exhibits and share them instantly without creating gaps in the record or interrupting the flow of questioning. For that reason, attorneys must be organized, and their questions must be presented with aforethought.

Further, adequate preparation is required to arrange the technological logistics of remote depositions. This includes securing a strong stable internet connection, operational microphones and speakers, and a quiet room with adequate acoustics. Finally, attorneys must be comfortable with using videoconference software, including filters, screen share, and mute functions to avoid unpleasant situations.

  1. The “Set-Up”

For the attorney taking a remote deposition, it is crucial to arrange it in a manner that ensures command over the proceeding. It is wise to select a court reporter with whom they are comfortable and with whom they have worked in the past. Additionally, it is essential that the court reporter be comfortable working remotely, is familiar with the remote swearing-in process, and is capable of handling electronic documents. Even if all the other parties attend remotely, it is a good idea for the attorney taking the deposition to arrange for the court reporter to be physically present in the same room. This will allow the court reporter to focus on their job and the attorney to maintain command.

In cases where an interpreter is required, an additional layer of complexity is added. It is generally insufficient to have just one connection established with the deponent when an interpreter is utilized. This is because having only one connection means that the interpreter must first listen to the question or answer, write it down, and – only after the person finishes talking – will they be able to interpret. This is a slow, inefficient process. On the other hand, when a second, separate connection is established between the deponent and interpreter, the interpreter will be able to simultaneously translate and relay questions and answers as the parties speak.

There is little doubt that remote depositions are more time-efficient and convenient than in-person depositions. This, combined with the ongoing risk presented by new variants of COVID-19 suggests that remote depositions are likely to remain a key part of litigation practice well into the future. Rather than resist change, attorneys must adapt to this new world and focus on how they can use new technologies for the benefit of their clients, which is the ultimate goal.

Courts Are Ordering Remote Depositions as the COVID-19 Pandemic Continues

Victor J. Zarrilli, Robert G. Devine and Douglas M. Weck | White and Williams

The COVID-19 pandemic has generally put a stop to in-person depositions nationwide. Many litigants and their attorneys have also resisted attempts to proceed with remote video depositions, some holding out for the pandemic to subside and for the return of in-person business as usual while others are resistant to using new or unfamiliar virtual video technology. However, with COVID-19 cases still increasing nationwide, courts are beginning to mandate that depositions proceed remotely regardless of these apprehensions. It looks like remote video depositions may become part of a new set of best practices and perhaps mandatory in some circumstances for the foreseeable future.

The Supreme Court of New Jersey, for example, has ordered that “[t]o the extent practicable . . . depositions should continue to be conducted remotely using necessary and available video technology.” The court has not explicitly mandated remote depositions, but has certainly encouraged trial courts to do so, indicating in orders litigants are “strongly encouraged” to depose witnesses remotely. Other jurisdictions, such as Philadelphia’s First Judicial District, have given trial court’s similar authority and flexibility.

Recently, a trial court in Middlesex County, New Jersey granted a motion to compel a defense deposition of the plaintiff to proceed remotely, if not in person, over the objection of plaintiff’s counsel in a slip-and-fall case. This is one of the first such rulings in this area. The plaintiff’s counsel objected to the remote deposition on the grounds that his client was elderly with a heavy accent, had no technology knowledge, and had no internet access. That would seem to be a pretty good argument that a remote deposition would be impracticable. However, the defendant bolstered their case with an offer to cover the cost of renting and delivering a remote deposition technology package to the plaintiff, complete with a tablet, phone, speaker, internet hotspot and remote training beforehand. Although the trial court acknowledged the plaintiff’s “significant hardship,” the court ordered that the deposition proceed remotely if not in person.

Disputes over remote depositions will need to be resolved on a case-by-case basis in light of the particular needs of the parties and the case. The COVID-19 pandemic is a unique circumstance. But well before the pandemic, courts have ordered depositions to take place remotely where warranted by the circumstances. Federal Rule of Civil Procedure 30(b)(4), for example, explicitly empowers trial courts to order remote depositions. When disputes arise, federal courts generally focus on whether the party opposing the remote deposition can demonstrate sufficient prejudice, and whether there is sufficient assurance that the deposition will produce accurate and trustworthy testimony.

It should be anticipated that courts will begin to order remote depositions more readily as judges, attorneys, and members of the public become more comfortable with remote technology and understand that cases will need to move forward despite the pandemic.

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.”

“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.

Trials And Depositions: The Rules Are Different

R. David DePuy | McLane Middleton

The rules regarding the examination of witnesses at deposition are vastly different from the rules at trial, and while the COVID-19 epidemic is changing the way we do depositions from in person to video, the rules of how deponents are examined have not changed.  When an objection is made at trial, the court will direct the witness not to answer the question until the objection is ruled upon.  If the objection is found to be valid, the witness is directed not to answer the question. Different rules apply at deposition where witnesses generally must answer questions whether objections are made or not.  The practice at deposition is that lawyers need not interpose objections to questions, except as to the form of the question, because, except in limited circumstances, the person being deposed must answer the question anyway, whether an objection is made or not.  Thus, at deposition where a witness is being examined by one lawyer, the opposing lawyer may object on the basis that the question seeks hearsay testimony, or that the matter is irrelevant, or that the question calls for a conclusion, or calls for an opinion, or seeks personal information of the witness, or is immaterial, etc.  Despite those objections, the witness must answer and will be told by the lawyer making the objection: “You may answer.”  Thus, at deposition a witness may be required to answer some questions that he or she would not be compelled to answer at trial.

There are certain objections that must be raised at deposition, or they will be lost, such as when the objection asserts that a question is leading or is phrased in a way that could be corrected by the lawyer asking the question.  If the opposing lawyer has an objection based upon the “form” of the question, then that objection as to form must be raised at deposition so that the lawyer examining the witness is given the opportunity to rephrase the question and ask it properly.  But even if an objection is made, the deponent must answer.  With limited exceptions, all other objections are preserved and may be raised at trial.  

In a Law and Order episode, the prosecutor, Jack McCoy, was talking to his associate, Claire Kincaid, about her upcoming deposition and explaining that she might be asked certain questions likely to elicit harmful testimony by her.  The response by Claire Kincaid was: “Well, you’ll just object.”  McCoy’s reply to her was: “But Claire, you know you have to answer the question anyway.” That, in fact, is the general rule.

There are a limited number of objections at deposition which, when made, can be followed by an instruction by the client’s lawyer directing the client not to answer.  Thus, objections based on privilege, such as the attorney/client privilege, the Fifth Amendment privilege or the doctor/patient privilege, may be raised at deposition and a lawyer may instruct the client or possibly warn a witness not to answer on that basis.  There are, generally speaking, only three bases on which a lawyer may instruct a witness, usually his or her client, not to answer a question at deposition.  Those three bases are:

  1. Privilege.
  2. In support of a court order, such as an order to protect trade secrets or to limit inquiry into certain past conduct or other limitations previously imposed by the court.
  3. An objection made in support of a motion.  Such objections are usually made to a certain line of questioning on the basis that opposing counsel is badgering the witness or humiliating the witness or improperly examining the witness to such a degree that the lawyer instructs the witness, or his or her client, not to answer and interrupts the deposition, or at least that line of questioning, and thereafter files a motion with the court to preclude the continuation of the deposition, or that line of questioning, because the questioning is being pursued in an improper fashion or for an improper reason.  Such motions are seldom filed and opposing lawyers, after some saber rattling, normally come to an agreement limiting the questioning.

Thus, the rule in general is that witnesses at deposition must answer all questions they are asked, even if the opposing lawyer objects.  The objection is simply noted on the record and the client or witness is then instructed to answer the question.  This means that, especially in divorce cases, some very personal questions may be asked of the parties or of witnesses.  Thus, clients, and to some extent witnesses, should be prepared to have to respond to some intrusive questioning at deposition.   Therefore, a party to litigation should be prepared to undergo some unpleasant questioning, especially in divorce litigation, where just about anything may be the subject of inquiry.