by Will Cooper
Although much of the economy has ground to a halt, the professional lives of most litigators continue unabated (if more complicated) during the COVID-19 outbreak. The pandemic has virtualized all sorts of pretrial tasks, even those that typically place a premium on up-close performance. While there is nothing unusual about taking an occasional remote deposition, they may become the norm over the next few weeks or months. When the virus upended a recent weeklong trip to depose seven fact witnesses, I and my colleague Josh White had to adapt our plans on the fly and depose everyone remotely. Here are a few tips for this new normal:
Make sure your deposition can proceed remotely and obtain a stipulation, if needed.
This may seem obvious, but it’s critical to research the statutes and court rules in your jurisdiction on remote depositions. In California, Rule of Court 3.1010 states that a party deponent “must appear at his or her deposition in person and be in the presence of the deposition officer,” while a nonparty deponent may appear “by telephone, videoconference or other remote means” on good cause and “must be sworn in the presence of the deposition officer or by any other means stipulated to by the parties or ordered by the court.” The law elsewhere may differ. You don’t want to find out last-minute that another party won’t agree to an alternative deposition procedure, or that you can’t use a transcript containing crucial testimony at trial.
Especially if a deposition is time-sensitive, think creatively to ensure it can go forward in compliance with the law, even under less-than-ideal circumstances. (In one recent deposition of a witness who didn’t have a webcam, we were able to have the court reporter swear in the witness by smartphone videoconference to verify her identity, then conduct the examination telephonically.) If you’ll need a stipulation or court order to allow your deposition to occur remotely, get it as soon as possible. And it’s smart to confirm on the record at the start of the deposition that all parties have stipulated to the methods of deposition and oath administration used.
Plan logistical details far in advance—and test everything if possible. Seriously.
Nail down all the details of your remote deposition with the reporting service, witness, and opposing counsel as early as possible. For example: Will the deposition proceed telephonically or by video? What videoconference software will be used? Does that system support video-recording in a form that could be used at trial, and if so, do you want such a video? Who, if anyone, will be in the same room as the deposition official? If the witness and deposition official won’t be in the same room, does the witness have a reliable and high-speed internet connection, a webcam, and any needed software? How will exhibits be introduced, and when will they be shared with the witness and opposing counsel?
After figuring out these details, try to have all participants download and test the required software in advance (the court-reporting service may be able to help with this). It’s far better to identify and solve technical problems before you’re on the record.
Put together a plan for handling exhibits.
It’s essential to have a plan for exhibits, including (1) how you’ll give them to the witness; (2) how you’ll share them with the court reporter and enter them into the record; and (3) how you’ll show them to opposing counsel. In a remote deposition, you can’t just show up with a folder full of documents and hand out copies of exhibits you use. In choosing how to get over that hurdle, consider the nature of the witness and the exhibits as well as the technology available.
If the witness is friendly or neutral and exhibits are obvious—e.g., the handful of documents that a minor witness produced in response to a subpoena—you might simply pre-mark and send the exhibits to all participants in advance of the deposition. But with adverse witnesses, or where advance knowledge of the exhibits selected would reveal deposition strategy, you may not want to give the witness or opposing counsel access until the moment an exhibit is used. Some commercial services have specialized electronic systems that allow you to upload exhibits in advance then “publish” them in the same window used for videoconferencing. In depositions with few exhibits, we have also had success sending pre-drafted emails with attachments during the examination. The important thing is to plan in advance so you don’t waste time or mental bandwidth once the deposition is underway.
Be intentional about your appearance.
With remote work now the norm, “business casual” has taken on a whole new meaning. For a videoconference deposition, think about how you want to present yourself and choose your attire and background appropriately. If the deponent is a well-credentialed expert or a high-powered executive, you may want to dress formally and position your camera in front of a plain background to emphasize that you are a professional who can play at her level. On the other hand, if the deponent is a younger or less sophisticated witness sitting for his first deposition, dressing informally and positioning your camera in front of a homey backdrop may help put him at ease and produce more fulsome testimony. Some commercial technologies even offer virtual backgrounds, which have the added benefit of avoiding the unfortunate sort of interruption that might occur if a toddler walks into the room.
Anticipate and minimize bad behaviors that a remote deposition might enable.
Depositions often bring out the worst in litigants and counsel, and remote depositions pose particular challenges. A remote depo necessarily means somewhat less control: The witness is not sitting a few feet from you, or in a sterile environment where you control the people and information to which the witness has access. So even more than with a normal deposition, it’s critical to anticipate behaviors to curtail with an admonishment. For example, if the deponent is joining the conference from home, consider adding to your introductory “ground rules” an admonishment that he must not use a cell phone or browse the internet. It’s also especially important to ask about any communications the deponent may have had during breaks.
If you do notice the witness doing anything out of the ordinary during the deposition, make a record of it. To illustrate, one of our recent deponents sat in the same room as the court reporter, plaintiff’s counsel, and the plaintiff—her close friend. On several occasions, the deponent appeared to be making meaningful eye contact with someone off-camera. That behavior is ambiguous without a view of the whole room, but a simple statement such as, “Let the record reflect that the witness appears to be exchanging nonverbal cues with plaintiff or his counsel” might head off future attempts at witness-coaching or give you grounds for attacking unfavorable testimony down the road.
Leave yourself plenty of time and expect hiccups.
Remote depositions tend to take longer than they would in person, so allow at least an extra hour for even straightforward depositions. And don’t schedule back-to-back remote depositions unless absolutely necessary. Finally, even with a solid plan in place, remote depositions—like other remote meetings—are prone to minor problems. Have someone with technical knowledge standing by or on speed-dial to assist. Expect at least a couple of brief technical interruptions, stay focused on your deposition goals, and enjoy the short commute home.