Litigators can strike a balance between actively moving their cases forward and coronavirus guidance and orders by remotely conducting depositions.
To conduct a successful remote deposition, litigators need to do some planning surrounding the platform, exhibits and deposition documents, and know what to do if the technology fails, including the following:
Vendor and Platform
Many court reporting services offer their own remote deposition platform. Once the parties agree to hold a remote deposition, the court reporting service needs the contact information for the participating parties and it will coordinate sending out invitations to the participants, for a test, prior to the deposition. As long as the parties have access to the internet, a device with a camera, and audio, they will be able to attend. It is best practice to work with the vendor at least one week prior to the deposition and arrive early.
Two of the largest remote deposition platforms are Planet Depos and Veritext Legal Solutions. These platforms offer pre-deposition trainings and have posted video recordings of the technology to demonstrate the ease of use.
Both also have advanced exhibit technology which allows easy admission and annotation of exhibits, as well as the ability to view the deposition transcript in real time. Planet Depos utilizes Zoom and advertises that its software is end-to-end encrypted, and are FedRAMP (Moderate) and SOC2 rated. Veritext Legal Solutions technology meets HIPAA (Health Insurance Portability and Accountability Act) security standards as a business associate, and meets PII (Personally Identifiable Information) federal and state requirements.
Managing Exhibits Remotely
Either forward the exhibits: (1) to the court reporting service for the court reporter’s disclosure during the deposition; or (2) to the court reporting service and all counsel/pro se deponent. The best practice is to provide hard copy exhibits to the court reporter and opposing counsel in a sealed envelope. Then, stipulate that any hard copies of exhibits will be opened, on camera, once the deposition begins. If the court reporter is not in the same room with the deponent, confirm: the court reporter received the exhibits, the exhibits are accessible, and that the exhibits are formatted properly.
Best practice is to consult with/defer to the court reporter on all issues related to production and management of exhibits, subject to potential issues such preferences could cause the deponent/your client.
Days Before the Deposition
When documents ordinarily would be produced at the deposition, best practice dictates that, instead, the parties negotiate an agreement that the documents will be produced a certain number of days prior to the deposition. Such production effectively acknowledges that the deponent complied with the subpoena or local/court rule requiring the deponent to “bring” requested documents to the deposition.
Remote deposition requires integration with various audio/video equipment and, best practice demands multiple considerations, such as:
- where the deponent will be physically located during the proceeding;
- how the deponent plans to connect to the remote deposition;
- whether the deponent has necessary video equipment to conduct the proceeding;
- that the proper video conference link was properly distributed to all parties, including any of your clients;
- whether the court reporter will physically appear, to be with the deponent, during questioning; and
- working with your court reporting service to have it run a couple of practice questions between all connections and present a representative exhibit to ensure strong audio/video connections.
Finally, best practice, is to anticipate technological failures. That way, in the event the video system fails, you can, as seamlessly as possible, switch to a telephonic deposition (typically, this is done by working with your court reporter).
In the event this happens, and before actually resuming the deposition telephonically, remember to place on the record the time the system crashed, the time the telephonic deposition begins, and that the parties have all agreed to continue the telephonic deposition.
Day of the Deposition
The appearance of propriety and the integrity of the deposition must be maintained. The following are suggested best practices to achieve those ends:
- place a stipulation on the record that the deposition will be conducted remotely, by videoconference, and that the oath will be administered remotely;
- where applicable, orally cite to the rule in your jurisdiction that allows for oaths to be orally administered in that format;
- request, on the record, that all electronic devices, not necessary for the deposition, be put on silent;
- demand that the deponent, at all times, be visible, on screen;
- request that chat functions be solely controlled by the court reporter; and
- obtain an affirmation from the deponent that they will not communicate with anyone, in any form, during the deposition.
Many jurisdictions place time limits on counsel’s ability to conduct a deposition longer than eight hours—consider stipulating to extend such time to allow for what you can expect will be longer—due to procedural hurdles, increased frequency of breaks, potential technical difficulties, presentation of exhibits, etc.
During the Deposition
Allow the court reporter ample time to put all appearances on the record. If not speaking on the record, mute your microphone to avoid background noise and other distractions. Speak slowly, one at a time, read slowly from documents, and, request that the deponent spell out the names of each identifier (name, street, witness, etc.) to ensure an accurate record.
Finally, review the procedural differences that were agreed to so there is no confusion as to how exhibits will be disseminated, whether the record will remain open, etc.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Thomas H. Barnard is a shareholder in the Baltimore office of Baker Donelson and is vice chair of the Government Enforcement and Investigations Group.
Hal K. Litchford, a shareholder in Baker Donelson’s Orlando office, focuses on the litigation, trial and appeal of antitrust, trade regulation and other significant business-related disputes, including class actions.
Jamie Ballinger, of counsel in Baker Donelson’s Knoxville office, concentrates her practice in employment, professional liability and corporate issues in the health care, hospitality and manufacturing industries.
Stuart Goldberg is an attorney in Baker Donelson’s Baltimore office and a member of the Labor & Employment Group.
Peter Zuk is an attorney in Baker Donelson’s Washington, D.C., office and concentrates his practice in white collar criminal defense and civil litigation.