{"id":903852,"date":"2025-01-22T15:25:50","date_gmt":"2025-01-22T22:25:50","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=903852"},"modified":"2025-01-22T15:25:53","modified_gmt":"2025-01-22T22:25:53","slug":"remote-depositions-account-for-everyone-involved","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/remote-depositions-account-for-everyone-involved\/","title":{"rendered":"Account for Everyone\u00a0Involved\u00a0in Remote Depositions"},"content":{"rendered":"\n

Esquire Deposition Solutions<\/a><\/p>\n\n\n\n

Last week\u2019s blog recounted the story of a litigator surprised by the\u00a0unannounced, off-camera presence of the witness\u2019s mother in the room during her son\u2019s remote deposition<\/a>. That should never have happened and, in modern practice, it most likely would not, due to the increasing prevalence of remote deposition protocols<\/a> in pretrial discovery planning documents.<\/p>\n\n\n\n

Remote\u2019s New Cast of Characters<\/strong><\/p>\n\n\n\n

The \u201cremote\u201d nature of a remote deposition invites the presence of deposition participants who would not ordinarily enjoy easy access to an in-person deposition. The first group of new participants are members of the litigation team who, thanks to modern remote deposition technology, can participate in \u2013 or, at least, observe \u2013 the deposition in real time. Their participation in the deposition process makes pretrial discovery significantly more efficient and more likely to lead to early, successful litigation outcomes.<\/p>\n\n\n\n

Then there\u2019s the second group: those unauthorized remote deposition participants who take advantage of counsel\u2019s inability to perform an on-the-scene inspection of the room in which the deposition witness is testifying. These are the troublesome participants that the American Bar Association cautioned against in its\u00a0Best Practices for Remote Depositions<\/a>\u00a0guidance.<\/p>\n\n\n\n

Fortunately, concerns arising from either type of remote deposition participant can be resolved through a\u00a0remote deposition protocol<\/a>. With a remote deposition protocol in place, litigators can limit in advance who will be authorized to attend the deposition and establish ground rules for how they will be allowed to participate. (Counsel should consult\u00a0local court rules that may limit who can attend depositions<\/a>\u00a0and whether or not these rules can be modified via stipulation.)<\/p>\n\n\n\n

For example, in Ali v. Franklin Wireless Corp.<\/em>, No. 21-cv-687 (S.D. Calif.), litigators described authorized participants in remote depositions as follows:<\/p>\n\n\n\n

    \n
  1. \u201cParticipant\u201d shall mean the Witness, the Questioning Attorney, the Defending Attorney, other attorneys or client representatives appearing on behalf of one of the Parties or a Third Party, paralegals or other individuals providing support to the attorneys, the Court Reporter, the Videographer and the Operator.<\/li>\n<\/ol>\n\n\n\n

    Another case, Geiser v. The Salvation Army<\/em>, No. 22-cv-01968 (S.D.N.Y), described the same cast of characters similarly:<\/p>\n\n\n\n

    The term \u201cDeposition Participants\u201d means all persons attending a Remote Deposition and includes, as applicable: (i) all attending Plaintiffs\u2019 counsel; (ii) all attending TSA counsel; (iii) counsel for any third-party subpoenaed for the subject deposition (if the third-party and the Parties agree in writing that this Order applies to the third-party\u2019s deposition per Paragraph 1); (iv) the deponent; (v) the deponent\u2019s counsel; (vi) in-house counsel for TSA or any third-party; (vii) the court reporter; (viii) the videographer; (ix) an interpreter, if necessary; and (x) any other participant agreed upon by the Parties.<\/p>\n\n\n\n

    Additional authorized remote deposition \u201cparticipants\u201d might also be expert witnesses or consultants to the litigation team. Some remote deposition protocols restrict attorneys to attorneys of record in the case. In all events, establishing in advance who may \u2013 or may not \u2013 participate in a remote deposition ensures that the deposition will proceed smoothly and without the presence of unauthorized individuals.<\/p>\n\n\n\n

    Define Acceptable Conduct for All Participants<\/strong><\/p>\n\n\n\n

    Having described the universe of authorized remote deposition participants, most remote deposition protocols create ground rules for their participation in the deposition. The ABA has suggested this step as a \u201cbest practice\u201d for remote depositions: \u201c[T]he parties may want to consider a stipulation and order from the court specifically defining the conduct of the deposition including what counsel may and may not do during the deposition.\u201d<\/p>\n\n\n\n

    While each case will demand its own set of acceptable participant behaviors, the following deposition ground rules have found their way into remote deposition protocols in the past few years:<\/p>\n\n\n\n