Deposing witnesses who are located outside your state or great distances away is an issue that attorneys often face. Clients are concerned about litigation costs and prefer not to incur travel expenses and witnesses are not always willing or able to travel to be deposed. Most state legislatures and the Federal Rules of Civil Procedure have recognized that communications technology can make pretrial discovery more cost-effective and efficient, and can accelerate the disposition of a case. Thus, formal procedures have been enacted in most jurisdictions to conduct depositions by telephonic and electronic means.
- Check if the applicable rules of civil procedure in the jurisdiction where the cause of action was filed allow the taking of depositions by telephonic means. Most state rules of civil procedure and the Federal Rules of Civil Procedure provide for depositions via telephone. Rule 30(7) of the Federal Rules of Civil Procedure specifically states that "parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means." Litigants in a majority of the federal and state courts need only make a limited showing of a "legitimate reason" for the request. Some state courts have held that "extreme hardship" must be shown before deposition by telephonic means will be allowed.
- If at all possible, contact opposing counsel and see if they will stipulate to the use of deposition by telephonic means. This may be the most expedient way to set up your appearance by telephone.
- Be ready for opposing counsel to object to the taking of deposition by telephonic means. The opposing counsel may argue that they are prevented from effectively evaluating the witness's demeanor and are denied the opportunity for face to face confrontation.
- If opposing counsel objects to the taking of depositions by telephonic means, file a motion with the appropriate court asking requesting that leave be granted to take a telephonic deposition. Most federal courts need only a showing of a "legitimate reason" for the request. Conservation of financial resources and undue burden of traveling great distances often meet the "legitimate reason" test.
- Under most state regulations, a reporter must be present at the location of the witness in order to execute the oath. The oath cannot be administered over the phone. Some jurisdictions permit a notary to swear the witness, while the reporter is at the location of the noticing attorney. The notary then needs to send an affidavit to the court reporter to show the deponent was sworn in.
- Make sure that the testimony is clear and audible to all persons present. Speakerphones tend to cut other speakers off when one person starts talking. If the others on the line do not respond to your objection, question or comment, there is a good chance they did not hear it, or the audio was garbled. In such a case, you can ask the reporter to read back that section or repeat your question or statement.
- As in any deposition, when two people start talking at the same time, words can be lost and the record gets muddied. This is even worse in a telephonic deposition, particularly where more than one person is coming in over the phone line. It is harder for the reporter to distinguish between the speakers when they are talking simultaneously over the phone, than when they are in the same room as the reporter but on opposite sides of the conference table. Even when only one person is speaking at a time, if more than one attorney is appearing by telephone, they should identify themselves whenever they start talking to avoid any confusion.
- Exhibit issues often arise, especially when complex or numerous exhibits will be shown to the witness. If counsel agrees to send exhibits in advance, they can stipulate that the exhibits not be viewed until the deposition starts. If counsel does not want to deliver the documents in this manner, documents can be posted to a Web server which facilitates the exchange of legal documents in real time format, or by simply using PDF documents sent via email.
Remote depositions, while uncomfortable for some attorneys, are becoming more common as cost savings and convenience warrant. The pros usually outweigh the perceived inconvenience faced by attorneys. Read the applicable rules in your jurisdiction and be prepared to use electronic means the next time distance or cost is a factor during pre-trial discovery.
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About the Author
Jana Davis, Esq. is with The Bailey Law Firm, P.C. in Memphis, Tennessee. She is licensed to practice in both Tennessee and Missouri and concentrates her practice on Estate Litigation, Elder Law, and Probate. She is involved with the ABA Young Lawyers Division Litigation Section and the ABA Real Property and Probate Sections. She is also involved with the Tennessee Bar Association, Memphis Bar Association Young Lawyers Division, and the National Academy of Elder Law Attorneys.
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