One of the many ways the COVID-19 pandemic has upended litigation is by making in-person depositions, for the time being, practically impossible. But cases must still go forward, so courts and parties have increasingly turned to remote deposition technology to keep litigation moving. To effectively represent their clients, counsel must ensure that the depositions they take and defend remotely are just as effective as in-person depositions for their eventual use in motion practice, hearings or trials. This article briefly describes some best practices that can help you meet that goal.
The first step to take for any attorney facing remote depositions is to plan. While some jurisdictions are moving toward formal protocols for this issue, many others have left it up to individual judges and parties. In particular, the bankruptcy and district courts for the District of Delaware and the Southern District of New York, two of the busiest forums for bankruptcy litigation, do not have standing rules on the issue. In those situations, try to stipulate with the other side ahead of time for an agreed-upon protocol as to how remote depositions will take place. If that is not possible, consider seeking a discovery order from the court.
In making a plan for remote depositions, you could face an adversary who insists on in-person testimony. You should thus be prepared if need be to move for an order under Rule 30(b)(4) allowing remote depositions. Under that rule, whether to allow remote depositions is generally left to the court’s discretion in light of the relative prejudice and hardship to the parties. [1] Under that standard, courts — recognizing that remote proceedings may be the “new normal” — have been largely willing to allow remote depositions during the pandemic. [2]
The next step is to ensure that the officer presiding over the deposition has authority to do so. When a deposition is taken remotely, the federal rules consider that the deposition is to take place where the witness is located. [3] Because the deposition officer must usually be a person with the power to administer oaths in the jurisdiction where the deposition takes place [4], make sure that the officer has that authority in the location where the witness is located. Further, because not all states allow notaries to administer oaths out of their jurisdictions, make sure that the deposition officer has the legal power to swear the witness where the witness is actually sitting. [5] To avoid these issues, the parties can also stipulate, or the court may order, that any other person be allowed to preside over the deposition. [6]
Another key consideration is how to use exhibits. You must balance ease of delivery, ease of reading for the witness, and the risk that someone unscrupulous may try to get a sneak peek at exhibits before the deposition. Some popular methods for sending witnesses each exhibit as it is introduced are via e-mail, via file-sharing services such as Dropbox, or, if it is available, through the videoconferencing software itself (such as Zoom’s “chat” feature). If exhibits are delivered electronically, you should take care that confidential documents are kept secured by, for example, placing e-mailed exhibits in a password-protected ZIP file. Another option is to send the witness a sealed box of physical exhibits that can then be opened on screen to prevent tampering. The best option to use will depend on your level of trust with the other side and the types of documents you will be working with. Recall that many witnesses may have an easier time reading documents, especially fine print, in hard copy as opposed to on a screen.
You should also balance the need for counsel to effectively confer with remote clients and the need to avoid coaching. Consider including, as part of your deposition protocol, an order or agreement that the witness must be left alone in the deposition room and that the witness must keep his or her electronic devices turned off. [7] Also keep in mind your jurisdiction’s rules on whether defending counsel may confer with their witness during breaks and whether taking counsel can ask questions about that conferral. [8] At the same time, you should ensure that your videoconferencing software provides for “breakout” rooms for witnesses and counsel to confer, and that for security and privilege purposes such breakout rooms are not recorded. [9]
In addition, ask yourself whether and how the deposition should be made secure. You may well have to comply with a protective order that requires you to keep confidential the testimony given or the exhibits used in the deposition. HIPAA, Gramm-Leach-Bliley and other laws may also require confidentiality protections for certain types of evidence. And given recent high-profile incidents of court hearings being disrupted by hecklers and trolls [10], you will want to ensure that your deposition is free from interference. Discuss with your vendor and IT staff how best to secure or encrypt the deposition livestream. At a minimum, you should ensure that both audio and video feeds are password-protected, that all participants identify themselves on the record, and that there are controls on who can share images or video.
Just as important is how a video format will affect your ability to take or defend the deposition itself. With hearings also being increasingly held remotely, you need to face the risk that the only testimony the court will ever see from your witness will be the testimony he or she gives remotely. Think like a film director about how the setting and conduct of the deposition frame the witness. Among other factors, both the witness and the principal attorneys need to be in a room with zero distractions and interruptions. The room where the witness sits should also be presentable so that the trier of fact will take the witness seriously. Witnesses and lawyers should talk slowly so that they can be heard clearly. More than ever, witnesses should pause before answering a question so that other attorneys can get out their objections. Witnesses and lawyers should also study guides for “Zoom etiquette,” such as the guide published by the U.S. Bankruptcy Court for the District of Delaware. [11] Time breaks to account for the fact that many people find long videoconference sessions stressful. And if you are defending a witness, do a dry run beforehand so that you can test the technology and ensure that everything looks right.
Moreover, be prepared for technical hassles. Make sure all parties have a sufficiently strong internet connection and high-quality webcams so that the livestream will not have glitches. You should also agree ahead of time (or seek an order) that the officer will stop the deposition if a key participant drops off and that the clock will stop during other types of technical difficulties. In addition, you will also want an agreed-upon backup plan, such as proceeding by telephone, if things go wrong. Working through those technical issues beforehand will both save time and prevent witnesses from getting irritated in what is already an anxiety-inducing process.
Finally, continue to keep an eye on new legal and technical developments. Many jurisdictions are rolling out or considering changes to remote deposition practice, [12] and new software and hardware to improve videoconferences have been coming out on a regular basis. Keep up with those changes so that you can be best prepared to represent your client going forward.
[1] Rouviere v. DePuy Orthopaedics Inc., No. 18 Civ. 4814, 2020 WL 3967665, at *2 (S.D.N.Y. July 11, 2020) (quoting RP Family Inc. v. Commonwealth Land Title Ins. Co., No. 10 Civ. 1149, 2011 WL 6020154, at *3 (E.D.N.Y. Nov. 30, 2011)). However, some local rules presumptively allow for remote depositions, such as when a party seeks to depose an adverse party. See, e.g., S.D.N.Y. L.R. 30.4.
[2] See, e.g., Rouviere, 2020 WL 3967665, at *2.
[3] Fed. R. Civ. P. 30(b)(4).
[4] Fed. R. Civ. P. 28(a)(1)(A).
[5] For a recent guide of state laws on this issue, see DLA Piper LLP, “Coronavirus: Federal and state governments work quickly to enable remote online notarization to meet global crisis” (Nov. 12, 2020), available at https://www.dlapiper.com/en/us/insights/publications/2020/03/coronaviru….
[6] Fed. R. Civ. P. 28(a)(1)(B) (appointment by court); Fed. R. Civ. P. 29(a)(1) (stipulation).
[7] See Joffe v. King & Spalding LLP, No. 17 Civ. 3392, 2020 WL 4361754 (S.D.N.Y. July 9, 2020) (imposing such an order).
[8] See, e.g., S.D.N.Y. L.R. 30.4 (prohibiting private conference with witness during deposition except to ascertain the existence of a privilege).
[9] See, e.g., Cesari S.R.L. v. Peju Province Winery L.P., No. 17 Civ. 873, Dkt. 230 (S.D.N.Y. Aug. 20, 2020).
[10] See, e.g., “A federal hearing was interrupted with images of 9/11 and pornography,” CNN (Sept. 14, 2020), available at https://www.cnn.com/2020/09/14/us/georgia-hearing-zoom-bomb-trnd/index….
[12] See, e.g., N.Y. Unified Court System, “Request for Public Comment on a Proposal to Promulgate a New Commercial Division Rule on Remote Depositions and a Remote Deposition Protocol” (Nov. 20, 2020) (considering remote deposition protocol for New York’s Commercial Division).