When it comes to taking and defending depositions, it’s not likely that in the age of the COVID-19 pandemic we will quickly return to “business as usual.” The in-person deposition is one of a construction litigator’s most important tools. Nevertheless, for the foreseeable future, depositions will continue in the virtual realm in observation of widespread social distancing guidelines. Now more than ever, witnesses need to be prepared to convey testimony on platforms outside the courtroom in a way that is time efficient, focused, and adept at conveying meaning. Conventional strategies such as communing with witnesses to prepare them for depositions are now entirely disrupted, with witnesses preparing from their homes distracted by wandering pets, disruptive family members, and frequent computer glitches.
Therefore, it is vital to the successful practice of construction law that we learn to adapt to this previously underutilized aspect of discovery proceedings and become accustomed to taking and defending depositions remotely.
The Rules Permit Remote Depositions
Over the passing months, many state and federal courts have increasingly rejected delaying depositions until some unknown time in the future when they can be taken in-person. Courts may authorize remote depositions under Federal Rule of Civil Procedure (“FRCP”) 30(b)(4) and will consider whether the burden of proposed discovery outweighs the likely benefit under FRCP 26(b)(1). Courts may also quash a subpoena under FRCP 45(d) where compliance would subject a person to “undue burden.”
The present COVID-19 restrictions may preclude an officer from physically attending a deposition, in violation of FRCP 28, which requires depositions to be conducted “before an officer authorized to administer oaths.” Although the parties can stipulate otherwise, federal courts have held that a deposition is deemed to have been conducted before an officer if that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote parties, and so long as all participants (including the officer) can clearly hear and be heard by all other participants. Further, various states have relaxed their rules regarding depositions to facilitate remote depositions. For example, California adopted Emergency Rule 11 to allow for waiver of the usual requirement that deponents be deposed in the physical presence of the deposition officer.
Setting and Eye Contact
The primary challenge for a defending attorney is to adequately prepare the deponent to avoid harmful testimony. In a remote deposition, this remains true, but the defending attorney also has to consider the deponent’s visual presentation, including the deponent’s physical surroundings. Indeed, when a deponent appears for a remote deposition, he or she is typically being deposed from the comfort of their own home.
The defending attorney should work with the deponent to ensure that his/her backdrop is neutral and free of distracting visuals such as family photos, books, or other clutter. The defending attorney should also ensure that the deponent’s location provides proper lighting and that the camera is placed at eye level. The deponent should also be advised that making eye contact directly with the camera is crucial to establishing credibility in a remote setting, as the camera shot will not allow for all of their body movements to be seen, thus placing even more focus on the deponent’s eye movement. Overall, it is recommended that the defending attorney obtain a visual of the deponent’s background before the date of deposition, preferably via a test run using the video platform that will be used by the court reporting company for the deposition.
Further, there are more opportunities for distractions in a home setting, and the defending attorney should counsel the deponent as to the need for a stress-free and quiet environment for the deposition. If pets and/or children are likely to interrupt the deposition, then an alternate location for the deposition needs to be found. Cell phones should be turned off or silenced. Distractions create distracted witnesses, increasing the likelihood that the deponent will not give his/her best testimony. From a technical perspective, the defending attorney should ensure that the deponent has high-speed internet connection to avoid dreaded delays and pauses, or even worse, a broken connection. Again, a test run with the deponent is recommended.
Dress for Success
As for the deponent’s dress, the defending attorney should encourage the deponent to wear business attire. Remote depositions are more likely to be videotaped, and the deponent’s dress can accomplish the obvious goal of presenting the deponent as a credible witness. Moreover, it sets the tone for the deposition. Sitting around in gym shorts, for instance, can impact how seriously you take the deposition. There is a real risk that the witness can be lulled into a false sense of security and become too relaxed sitting at home and not take the deposition quite as seriously as when seated in a conference room setting surrounded by others in formal suit attire. By having the deponent dress professionally, it can serve as a reminder to the deponent of the seriousness of the proceeding. In other words, dressing the part can lead to acting the part.
Stay on Alert
The informality of a remote deposition can also lead the deponent to feel more casual and at ease (especially where the deponent’s home will serve as the deposition location) and thereby increase the likelihood that the deponent will become too talkative and provide longer responses. Thus, the deponent should be counseled more than ever to only answer the question asked and to provide succinct answers. The lack of formality is also complicated by the limitations of a deponent’s attention span. As anyone who has attended a Zoom meeting can attest, it is simply harder to pay attention for prolonged periods of time while staring at a computer screen. The defending attorney should thus monitor the deponent’s attention closely and request additional breaks as needed.
Also, because the deponent cannot detect the typical visual cues from his/her attorney that a question is objectionable, it is more imperative that the deponent is instructed to pause after each question to allow for objections to be interjected and to create a clear record by avoiding people speaking over each other. These longer pauses between a question and answer become even more important due to time lags in the internet transmission of testimony. The challenge is to convince your witness that uncomfortable silence is acceptable, and that it is the deposing attorney’s job to fill the silence with the next question.
Prior to the deposition, the defending attorney should work with the attorney who noticed the deposition to obtain information regarding the video platform that will be used, to ensure that breakout rooms are available so that the defending attorney can conference with deponent during breaks, and to secure assurances that only authorized recording of the deposition will occur.
Test the Technology Ahead of Time
The deponent’s internet connection is just as important to the noticing attorney as it is to the defending attorney. The noticing attorney should not assume that the deponent has adequately tested his/her connection and should insist on a diagnostic test of the deponent’s connection by the court reporting company prior to the date of deposition.
Ultimately, the familiarity that an attorney has with their technological platform plays a vital role in their ability to adjust to this new virtual stage. Therefore, the noticing attorney should conduct a test run on the video platform to ensure that his/her level of comfort and understanding with the software is sufficient for all depositions.
Get a Handle on Exhibits
It’s critically important to gain familiarity with how exhibits will be presented to the deponent, especially for a typically document-intensive construction deposition. Most court reporting companies provide screen-sharing technology allowing the court reporter to show an exhibit to the deponent on screen. Gone are the days of bringing banker’s boxes of potential exhibits to the deposition. Instead, the noticing attorney will likely need to make electronic copies of the exhibits available to the court reporter before the deposition commences.
Some court reporting companies even provide portals where exhibits can be privately uploaded prior to the deposition, which allows the noticing attorney to introduce any potential exhibit uploaded to the portal and make it available for immediate review by every party participating in the deposition. Working hand-in-hand with the court reporting company prior to the deposition will ensure smooth introduction of electronic exhibits. Whichever vehicle chosen, attorneys should create a clear and precise record by identifying each exhibit before commencing examination of the exhibit.
Also, a witness is entitled to see exhibits displayed in full before answering questions. If the witness indicates a need or desire to do so, then counsel cannot limit the deponent’s view to a particular section of a document over such an objection. Of course, the noticing attorney may also elect to provide physical copies of the exhibits to the deponent to be delivered beforehand, but this may remove some element of surprise that could be advantageous.
Admonitions More Important
The admonitions at the outset of the deposition take on special importance during a remote deposition, given the additional potential for notes being used by the deponent and coaching of the deponent by the defending attorney though text messages and the like. The noticing attorney should admonish the deponent that no notes are allowed during the deposition and that the deponent may not read from anything other than the exhibits presented by counsel. The noticing attorney should also admonish the deponent that he/she is not allowed to communicate with the defending attorney while a question is pending. It is best to couch these admonitions in a non-accusatory tone explaining to the witness that this is a new process for everyone concerned.
In summary, the judicial system has not come to a halt during COVID-19, and thus courts are increasingly compelling parties to use virtual depositions in their cases. This requires today’s litigators to venture outside their comfort zone and both recognize and manage the non-conventional aspects of taking and defending depositions remotely.