Remote depositions have become a common feature of litigation in the past few years, particularly since the dawn of the Covid-19 pandemic. As lawyers have gained comfort and familiarity with the virtual deposition paradigm and the technological innovations that have made it possible, they’ve learned lessons and developed protocols that facilitate conducting oral discovery remotely.
Recently, the American Bar Association (ABA) published Resolution 505, Best Practices for Remote Depositions, which seeks to synthesize and codify that hard-earned wisdom. The drafters organized Resolution 505 into six broad practice pointers. Here’s a summary of what they cover and how using a purpose-built remote deposition platform makes it easy to implement them.
1. Know the Rules
Despite their skyrocketing popularity, remote depositions remain a relative novelty as far as the rules of civil procedure are concerned. Civil litigators cannot simply demand to take a remote deposition as if it were an in-person deposition. For now, in federal courts and most state jurisdictions, lawyers may only give notice of and conduct a remote deposition with the parties’ consent or by court order obtained after filing a motion. A few states have special rules or laws addressing notice and conduct of remote depositions, while others don’t have any specific rules.
Check the current applicable procedural rules to ensure you give proper notice of a remote deposition and conduct the proceedings appropriately. Keep in mind that in most courts, you will need a court reporter authorized to administer oaths in the jurisdiction where the deponent is located. Using a leading virtual court reporting service can help ensure compliance with that requirement.
2. Understand and Test the Technology
You’ll conduct your remote deposition via an audio/video platform. It behooves you and opposing counsel to familiarize yourself with it and test it a day or two ahead of time to ensure everything works. Few things undermine a remote deposition as thoroughly as a lawyer who feels uncomfortable with the technology or a platform that stops working (or never does).
Your choice of a virtual deposition platform can significantly affect how much you’ll need to familiarize yourself and the comfort level you’ll achieve. Selecting a purpose-built remote deposition solution gives you access to a suite of deposition-specific tools and services that aim to make every aspect of taking or defending virtual testimony feel as intuitive and familiar as participating in an in-person examination. Consequently, the familiarization process for these solutions is relatively short and painless.
In contrast, opting for a generic video platform like Zoom, which works for connecting people online but wasn’t built with depositions in mind, may require significantly more advance work. For example, lawyers who go that route usually need to devise protocols and technological workarounds to ensure the parties can ask questions, lodge objections, and review exhibits effectively.
3. Prepare for the Remote Deposition as a Remote Deposition
Your preparation for a deposition should always consider the format and setting. Remote depositions work as well as in-person ones, but the two formats differ. To prepare for a remote deposition, you’ll need a plan for managing features of the virtual format that can affect your advocacy and productivity. For example, you may need to make sure that:
- Everyone has a reliable internet connection and a quiet, private setting in which to participate;
- There’s a protocol in place for addressing interruptions, uninvited participants, or technical glitches, including how to allocate time lost to disruptions;
- Only one authorized party — the court reporting service in most cases — will record and transcribe the deposition, and no unauthorized recordings may be made or admitted as evidence;
- The parties have clarity on how exhibits will be shared, marked, and reviewed during questioning (see below).
Again, the platform you choose for your remote deposition can significantly impact how you resolve these issues. Leading virtual deposition solutions offer features that facilitate connecting to a session, managing its participants, recording and transcribing the proceedings, and managing exhibits. Bare-bones video conferencing solutions lack that functionality and require extra planning.
4. Focus on Exhibit Management
Taking a quality deposition depends on the effective use of exhibits. While showing and questioning a witness about an exhibit in an in-person deposition requires nothing more than handing a piece of paper across a conference table, it’s not so simple in the virtual realm. You must consider how you will mark, share, and use exhibits in a remote deposition to avoid wasting time and losing opportunities to gather facts or lodge relevant objections.
During the pandemic, exhibit management emerged as one of the most vexing issues for litigators conducting virtual witness examinations, spurring much of the innovation that gave us today’s leading remote deposition platforms.
Before those tools rose to meet the challenge, litigators had little choice but to devise elaborate procedures for sending exhibits to a court reporter before the deposition, emailing documents to opposing counsel or uploading them to a cloud server in the course of questioning, and ensuring the witness reviewed the correct exhibit in the appropriate format.
Fortunately for lawyers, the latest virtual deposition solutions address those issues by offering intelligent features that enable lawyers to pre-upload and mark exhibits, share exhibits on the fly during questioning, and ensure that all parties see and refer to an exhibit simultaneously and without ambiguity.
5. Practical Pointers for Conducting and Defending a Remote Deposition
The ABA’s Resolution 505 offers practical pointers for ensuring that a remote deposition proceeds smoothly. They include:
- Consider whether a particular case calls for at least some participants to be in the same location.
- Make sure that all participants stay on-camera and visible to each other during the deposition.
- Provide for the deponent and their counsel to have confidential sidebar discussions in person (if they’re in the same location) or remotely via a virtual breakout room or other online communication tools, while safeguarding against real-time “coaching” or other forms of prohibited consultation.
- Agree at the outset whether the witness may access documents or materials other than exhibits during questioning and, if so, how to disclose them to counsel taking the deposition.
- Periodically remind the participants not to talk over (and inadvertently mute) one another to ensure the completeness and accuracy of the transcript.
Above all, remember that remote depositions remain a relatively new format for many litigators. A modicum of patience for occasional missteps will help ensure a successful deposition and a thorough, accurate record.
Ensure an Effective Desposition with the Right Technology
The ABA’s sixth best practice for remote depositions essentially reiterates the substance of the five preceding it. Counsel should anticipate and seek to avoid technological hiccups, technophobic participants, and attempts by witnesses and opposing counsel to game the remote format and its evolving protocols to their advantage. Following the tips above should help to sidestep those pitfalls. So can using purpose-built virtual testimony solutions that give litigators, witnesses, and court reporters an all-in-one tool for conducting efficient, productive remote depositions.
Remote Legal is a leading provider of remote deposition technology and services. Contact us today to see how we can streamline every part of your deposition process.
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