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Depositions Go Virtual During Pandemic, May Remain That Way

May 22, 2020, 2:01 PM

Squire Patton Boggs partner Steven M. Auvil in March asked an Ohio federal judge to take a rather unusual step in a case he was working on, compel a remote deposition.

The state’s stay-at-home order precluded an in-person meeting, but opposing counsel in the patent infringement matter argued that a remote deposition would adversely affect their ability to represent their client.

In the process of writing his motion, Auvil found at least a half a dozen other cases in which judges granted requests for remote depositions since the outbreak of the Covid-19 pandemic. One New York federal judge had gone so far as to issue a standing order that all depositions in matters before him may be taken remotely.

While technology required to take virtual depositions has existed for more than a decade, litigants and courts have been slow to adopt the practice and some have said it has very real limitations. But as courts have closed across the country due to the pandemic, more litigants are giving it a shot.

“The courts are expecting the parties to use virtual means,” said Auvil, whose motion was ultimately granted. “They’re saying video conference technology is rock-solid and has been used for years, so use it.”

Remotely Useful

“Right now, because of COVID, 100% of depositions are being conducted remotely,” said Valerie Berger, a senior vice president at Veritext, the court reporting company Auvil used. “It took a few weeks for clients to adjust and adapt to remote proceedings, but now the number of depositions have exponentially increased and continues to do so.”

The widespread adoption of remote depositions has historically been limited by state notarization laws, which vary widely. In many states, notaries--often stenographers-- are required to be physically present with a witness when swearing them in for a deposition, making remote work impossible.

In response to the pandemic, many state governors, including New York’s Andrew Cuomo, issued emergency orders authorizing remote notarization, allowing reporters to verify witnesses’ identity via video conference. A Senate bill introduced in March would authorize remote online notarizations nationally.

After stay-at-home orders began, Max Curry, owner of Elite Reporting Services, began marketing remote depositions. After stay-at-home orders took effect, his agency’s capacity dropped to as low as only five percent of its normal workload. He now estimates that he’s at 60 percent capacity, and hopes to take on even more reporting work in the coming months. Many of this is possible because his agency has an IT department and has been able to proactively solicit remote work. “We’ve had to do a tremendous amount of education and upsell,” he said.

Many stenographers see the crisis as an opportunity to advance the kinds of changes they have long called for.

“We’ve had this technology, we’ve used it for years,” said Curry, who is also president of the National Court Reporter Association.

There has been a widely reported shortage of court reporters in the U.S. in recent years, but Curry believes at least part of that shortage stems from reporters being located in the wrong place. An increased acceptance of remote depositions might help.

“There have been many times where I’ve been overbooked by four or five jobs in Memphis, but we have two reporters sitting idle in Nashville,” said Curry, who runs a statewide court reporting agency in Tennessee.

Christine Phipps, president-elect of the NCRA, owns a court reporting firm in Florida that has been conducting remote depositions for the past ten years.

“I have ten offices throughout the state of Florida, but there are still places in Florida that are difficult to cover,” Phipps said. “Like the Florida Keys. Reporters have to come from Miami and drive two hours for a deposition that will take one hour.”

As of the end of April, her firm had booked over 2,000 virtual proceedings in 2020, including depositions and examinations under oath, according to Phipps.

She believes that lawyers and judges will be quick to embrace the technology once they see how much time it saves. “How else do we get time back in our day unless people stop traveling?” she said.

Of course, one major problem for stenographers during the pandemic is that most depositions simply aren’t happening as discovery deadlines are extended.

Marjorie Peters, an independent court stenographer based in the Washington metro area, works in complex civil litigation and normally takes about three to five depositions per week.

All of her recent work has been remote, but there hasn’t been much of it to speak of. “I’ve maybe taken five depositions, remotely, since March 19,” she said in a phone call on May 12. “That’s my entire income.”

Curry said he gets daily calls from NCRA members who have seen a “great diminishment in income and work.”

Easing Back In

Virtual depositions courts might help courts and lawyers ease back into a new normal after the worst of the virus has passed, but it remains unclear whether the practice will pick up steam as courts re-open.

Peters prefers in-person reporting jobs because she said they allow her to get a more accurate depiction of the record. With video calls, speakers are more likely to go unheard if they cut each other off. “If there’s an objection and the witness speaks at the same time, it could cut the objection off,” she said. “I don’t know if that attorney is yawning or objecting.”

Auvil also acknowledged drawbacks. “One of the big concerns with virtual depositions is the lack of checks on the opposing lawyer and the interaction with the witness,” he said. “You can’t know whether there are signals or communications going on electronically. Maybe the witness is being deposed and the other lawyer is texting answers to the witness.”

It’s also harder for lawyers and witnesses to use body language virtually. “Like leaning in, pointing to a document with your finger,” explained Auvil. “That can sometimes exert pressure on a witness to answer the question more honestly.”

But Peters said there is significant value in remote depositions, particularly when travel is prohibitive.

“It should be an option for the litigants to be able to choose,” she said. “Based on what we’re going through now, people may become more comfortable with it, and that’s a good thing. It opens up options.”

To contact the reporter on this story: Stephanie Russell-Kraft in New York at srussellkraft@gmail.com
To contact the editor on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com;
Chris Opfer in New York at copfer@bloomberglaw.com; Tom Taylor in Washington at ttaylor@bloomberglaw.com

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