How Zoom is Changing the Way Employment Lawyers Conduct Depositions

Ask anyone to name the cultural touchstone they most associate with the Covid-19 pandemic, and it’s a good bet you’ll get a single-word answer: Zoom. Practically overnight, the world turned to the ubiquitous video conference platform as its social and commercial lifeline of choice. Zoom became our workplace, our party space, our living room, and our classroom.  It kept us connected with family and friends, plugged us into business meetings, and even brought live concerts to our desktops. 

In the legal sphere, Zoom became (among other things) the default option for conducting depositions. More precisely, for nearly two years, Zoom depositions were the only well-known option for litigators hoping to keep discovery on track during the era of stay-at-home orders and social distancing. And even now that pandemic restrictions have receded, Zoom remains a popular — albeit very imperfect — choice for taking and defending remote depositions in a wide range of cases, including employment matters. 

The legal community is still coming to terms with the new remote deposition paradigm. The ABA only recently released its recommended best practices for remote depositions, for instance. But it’s already clear that Zoom brought about some significant changes in how lawyers administer and participate in oral discovery. And those changes have spurred awareness of innovations in legal technology that build on the survival processes of what firms were achieving through Zoom, providing employment litigators with the full suite of tools they need to maximize the efficacy and accuracy of remote testimony. 

The Challenge of Making a Zoom Deposition Work

The power of Zoom, but also its limitation, lies in its universal adaptability. As families, businesspeople, and artists proved time and again during the pandemic, Zoom serves as a sort of blank slate — an empty meeting space that users can occupy and use as they see fit. Its user interface feels reasonably intuitive and offers tools that broadly facilitate collaboration. But its features don’t set too many rules or assume too much about what will take place on the platform. Zoom can be any type of forum for any type of user.  

The pandemic left lawyers little choice but to use Zoom for remote depositions. And it served the purpose, albeit imperfectly. By and large, lawyers could treat Zoom as a sort of virtual office conference room where they might attempt to replicate the experience of taking a deposition in person. And over time, many of them became pretty good at it by changing some of their practices and tempering their expectations for what they could accomplish in a virtual setting. But in a world where remote depositions have become a normal part of the landscape, more was needed. 

Changes to Practices and Procedures

Suppose you want to take the deposition of your opposing party’s employee who works at company headquarters two states away. Zoom gives you the flexibility to take the deposition without anyone needing to spend time and money traveling to a deposition site — a common cause of tension and delay in employment litigation. 

Related: How Popular Are Remote Depositions After Covid?

To accomplish an employee deposition by Zoom, however, you’ll need to adjust some of your practices and procedures. For example, you’ll have to: 

• Confirm that all participants have access to a streaming-capable device, an adequate internet connection, and a reasonably quiet and private setting (e.g., an employee should not be deposed anywhere they’re likely to be interrupted by co-workers or work duties)
• Find and book a court reporter who is comfortable transcribing a deposition remotely
• Find and book a videographer to travel to the deponent or, alternatively, arrange for remote video capture of the deposition that will have adequate sound and picture quality to use in court
• Negotiate and agree with opposing counsel in advance on protocols for:
  • Marking and sharing exhibits during the deposition (e.g., whether you will use screen sharing, email, or a cloud service to give access to exhibits,  whether the deponent will have access to documents on a separate screen, etc.)
  • Dealing with technical glitches and whether the delays they cause will count against the questioner’s time
  • Ensuring that objections — which risk being muted when multiple people speak at once — get noted in the record
  • Limiting the use of other communication technologies, such as instant messaging, by the deponent during questioning
  • Ensuring the deponent and their attorney can communicate confidentially and effectively during the deposition

These changes don’t always come easily to lawyers set in their ways. Many employment lawyers and their office staff have only come to them through frustrating trial and error. 

But in the three-plus years since the pandemic exploded, attorneys have grown used to them (though not necessarily content with the effort they require). And that has continued to fuel a steady increase in the use of remote depositions by Zoom. 

Tempered Expectations

Still, you’d be hard-pressed to find an employment lawyer who thinks taking or defending a deposition over Zoom is just as effective as the real thing. Most litigators, while they accept that remote depositions are here to stay, still strongly prefer in-person depositions over Zoom-based ones. 

That’s largely because Zoom does not — and was really never meant to — deliver on the promise of convenience and efficiency that makes remote depositions so attractive for busy litigators, at least in the abstract.  Instead, as we’ve described, conducting a deposition by Zoom involves complications that the platform remains ill-suited to solve. 

Lawyers have come to accept, if only begrudgingly, that a deposition by Zoom may mean:

• Extra administrative and IT work before and after the session to ensure the quality of the transcript and video
• Unavoidable delays and frustrations when technical problems arise, as they frequently do
• Exhibit-sharing protocols that can limit the flexibility and effectiveness of the questioner
• A limited pool of qualified court reporters prepared to deal with the unique challenges of Zoom depositions

Don’t get us wrong. It’s possible to conduct a high-quality deposition over Zoom. But it’s usually far from assured. So what is the alternative?

Related: Technical Requirements for a Remote Deposition

Employment Lawyers Turning to Purpose-Built Remote Deposition Platforms

The widespread use of Zoom to conduct depositions during the pandemic confirmed the massive potential of remote depositions. But it also highlighted the need for video conferencing tools purpose-built for litigators, with the security and features the industry actually needs. 

Today, employment litigators have the option of conducting depositions on purpose-built remote deposition platforms that improve on mainstream video platform methods by giving lawyers a suite of services and tools specifically designed to accomplish core deposition-related tasks. They incorporate features like: 

• A web-based video conferencing platform designed specifically for taking and defending depositions
• Access to and scheduling of court reporters qualified to take testimony via the platform 
• Exhibit pre-uploading and marking
• On-the-fly exhibit uploading 
• Seamless exhibit sharing 
• Simultaneous audio, video, and text streams
• Virtual breakout rooms for sidebar discussions
• Near-instant delivery of rough draft transcripts in electronic format
• Prompt delivery of official transcripts in electronic formats
• Videography services, including syncing video and transcript text

Remote deposition services like these represent the necessary evolution of litigation practice away from Zoom and toward solutions that meet the needs of today’s legal professionals.  Employment lawyers who embrace them can achieve true cost savings and efficiencies, without the numerous challenges that have typified taking testimony over Zoom. 

Remote Legal is a remote deposition court reporting service that offers an all-in-one remote deposition platform built with the needs of employment litigators in mind. Contact us today to see how we can transform the experience of remote depositions, making them effective, efficient, and an asset to your cases.