Embracing and Preparing for Remote Depositions

But is it all bad, and is it all a challenge? Not necessarily. Yes, we do need to have more in mind than we used to, but there are certainly benefits to the emergence of remote depositions as a result of the COVID-19 epidemic.

It used to be, years ago, that when a witness was unavailable for whatever reason, the only option for a remote deposition would be by telephone. I have been involved in telephone depositions in the past, and so much is lost when you are not able to see the deponent face-to-face or see the interactions the deponent is having with their attorney.

In more recent years, we have sometimes resorted to remote depositions, especially in international legal disputes where parties were residents of different states or countries. However, the technology itself was usually prohibitive. In the last decade, I had witnesses testifying remotely who would have to travel from one city within a European country to another simply to be in a location with sufficient internet bandwidth to allow video streaming.

These days, however, that is no longer an issue, and, for the most part, you can expect your witnesses to have sufficient internet capacity from wherever they may be in the world. Be sure, however, to check with your opposing counsel and their witnesses a few days beforehand to make sure that the witness can connect and will have a means to view exhibits during the deposition (which can be a second device or the computer from which they are appearing on camera). Reach out to your court reporter and have them connect with each person who will be present to run a connection and equipment test. I find there is no additional charge for this, and they are happy to do it.

Benefits of Remote Depositions

You can now depose witnesses from all over the world, including expert witnesses who you would otherwise be hosting. Without having the ability to conduct a deposition remotely, it was always cost prohibitive, at some point in any litigation, to depose nonlocal witnesses. In this increasingly mobile world, companies had headquarters in different locations. Families had members and coworkers all over the world, and witnesses were interspersed, even in the most personal of family disputes.

We can now depose faraway witnesses we would never have been able to depose. Jurisdictions adopted emergency rules to allow for this, some of which are now permanent rules.

In addition, expert witnesses, who are often out of town (especially in the case where you are looking for someone with a very niche specialty), were traditionally flown into town by law firms and their clients. They often insist on business class tickets and business-level accommodations, not to mention reimbursement for transportation and meals. These high costs are all in the past if you can depose an expert remotely or offer your own experts to be deposed remotely.

Another benefit is that during the last year, many matters could continue with discovery even when courts were closed. This allowed many cases to continue to progress to settlement or trial-readiness for when the courts did open.

In addition, remote depositions have the benefit of speed. With parties, witnesses, and attorneys no longer needing to all be exactly in the same location during a deposition, cases may get resolved more quickly. Many have appeared for a deposition during their vacations because it is a few hours during which they would otherwise be out of town, but they were able to attend while away. This can allow cases to end more quickly or progress more efficiently despite all the varying schedules, vacations, and travel that would otherwise delay coordinating mutually acceptable in-person dates.

Another benefit of a remote deposition is to be able to see the witness’s face when testifying. Sure, your area may allow a deposition indoors, but is that really the best option? Is it really better to take an in-person deposition when the witness will be wearing a mask and you cannot really gauge their expression or their mannerisms with half of their face covered up? That being said, an important tip is to make sure that expectations are discussed and resolved before you actually turn on your video for a deposition and get surprised.

For example, you may schedule a remote deposition where one of the benefits you have in mind is that you will be able to see the witness’s face and reactions. However, you may be met with the witness coming on camera wearing a mask because he or she may be at their counsel’s office without your prior knowledge, or somewhere else where they are wearing a mask.

Therefore, make sure to communicate beforehand that you expect the witness to be in an isolated location where he or she will not be wearing a mask. Ask your opposing counsel if he or she will be in the same room as their client. Ask your opposing counsel if they are planning on being physically present or having any experts or consultants with them in person or on video. Then resolve any disputes before the deposition; otherwise, you will lose some of your deposition time to surprises when your witness first turns on their camera.

Potential Pitfalls

On the other hand, there are certainly issues and pitfalls when conducting a remote deposition that you need to be aware of, some of which cannot be avoided.

Connection Problems. A witness may come in and out and your video may go in and out during the course of a deposition. However, if you ensure in advance that you and your witness will have access to high-speed internet, those kinds of problems usually last only a few seconds or minutes.

Cheating. There is no way to ensure with 100 percent certainty that your witness is not cheating. Some of the questions you should ask to try to avoid it, and so you have a record of their answers, are:

• Where are you?
• Who is there with you?
• What about in any other room?
• Can anyone else hear you?
• What device are you using for this deposition? Does it allow for messaging while you are on screen?
• Do you have any other devices in the room? Where is your phone?
• Have the witness agree that they will not communicate with anyone while testifying and will not read any messages or emails either while on the record.
• Ask the witness to notify you immediately if any of their answers to the above questions change during the course of the deposition.

Even if you were to ask all of the above questions and your witness were to answer all of the questions correctly, there is no way to really know for sure that your witness does not have someone in the room in front of them who is mouthing the answers to them or who is typing answers, texting with them either on the computer they are appearing from or another device.

After being involved in so many remote depositions as well as remote court appearances, I can tell you that you simply cannot guarantee to your client or to yourself that you are getting proper and uncoached testimony. Because we cannot fix this, it is something to keep in mind. Perhaps make sure you are asking all of your impeachment questions later, in court, instead of giving the deponent too much of a preview during the remote deposition at which someone else may provide them with an answer.

Unnecessary Harassment. Another pitfall to the proliferation of remote depositions is whether it will invite more harassment; for example, a disgruntled employee who has been fired for good cause attempting to depose all top-level employees at a faraway headquarters or a spouse of a client who has an employer having all of his/her supervisors deposed for no real reason other than the spouse is angry.

It may be time to get more familiar with your case management and discovery refereeing rules in your jurisdiction in case you are met with so many remote depositions and notice that they are obviously a vehicle for unnecessary harassment.

More Litigation. Another possible issue is whether the advent of remote depositions invites more litigation. Of course, more litigation may be good. There are plaintiffs and parties who need assistance. After all, that is why courts exist and were created. Wronged parties can bring cases because they may be less expensive using remote deposition as there is more access to more witnesses to depose to make a claim. On the other hand, this may cause more lawsuits and contribute to the clogging up of our courts.

Lastly, there are cost issues on both sides of the pendulum, meaning there are a number of items on which you save money but a number of hidden costs that you should discuss with your client before proceeding with a remote deposition.

Cost Savings. For one, counsel no longer has to charge for travel time. Especially in busy areas such as Los Angeles, where an attorney can easily commute one to two hours for a deposition while charging the client for travel time, the client will save money, even more if the deposition would have required a flight, meals, and overnight accommodations.

In addition to no travel costs for expert witness travel, there would also be no out-of-pocket costs for nonexpert witness travel. Often, your client’s requested witnesses will have to travel to the location not because they are required to do so but because they are assisting your client and have valuable information that your client is proffering. With the ability to take their deposition remotely, there will be no out-of-pocket cost for their travel, lodging, or transportation.

Hidden Costs. It is my experience that a videographer is automatically ordered by our deposition company and will appear on the record once you schedule your deposition. This is fine, except this carries a cost of a few hundred to a few thousand dollars over and above the cost of your court reporter. If your client will not necessarily benefit from having a video or simply cannot afford it, be sure to tell your deposition reporting company not to send a separate videographer to the deposition, and you will save that cost

Given remote audio challenges (it really is much harder to hear, for various reasons), you may need to order Real Time software companion for your depositions, that is, a separate screen in front of you showing all questions and answers. As helpful as Real Time is, it does carry the cost of a few additional hundred dollars.

Next, you may have inadvertently or purposely signed on to an exhibit-share service when setting up your deposition, especially if you have many exhibits. Many of the exhibit-share services provided by court reporting companies are excellent. They even provide the foundation for your exhibit binders and exhibit lists for trial later on. However, they are not free, and that in itself could cost a few additional hundred dollars that you or your client may wish to avoid.

Lastly, on the extra cost front, many attorneys have technicians present during their remote depositions, whether at the witness’ location or where a client is located, to make sure that Zoom or another video platform is working properly. They will often need to stay for the duration of the deposition to ensure there are no issues or glitches. To the extent you can, see if your court reporter’s office can help with this, as it will often save money. I have also seen the use of technicians at remote depositions simply to exhibit-share.

Tip: Screen-sharing over Zoom will only allow part of your page to be shown on the screen at a time, and you have to really work with the witness as to where they are on the page to make sure they will see all of it. This does not allow much time or agility for you to look ahead at your questions or your next exhibit. In Zoom, you can instead choose to upload the document in the “chat” function, which will allow the witness to look at it at their own pace and in a larger format. Doing this may save you the fees of paying a tech-savvy person to do your exhibit-share for you.

Other Considerations

• How will you communicate with your client? I am too skeptical to do so in a “breakout” room and will always ask my clients to call or message me on a separate device.
• Are there any exhibits you can send to the witness or their counsel before the deposition so they have them readily available, saving you valuable deposition sharing time?
• Ask the witness to produce documents beforehand (the day before at least) as you will have no hard copies and an on-the-spot review of electronic material may be too cumbersome to work effectively.

At the end of the day, it is welcome in the world of litigation to make a cumbersome process easier, so remote depositions are here to stay. Don’t shy away from them. Embrace the opportunity and use the resource of your court reporters to help you get familiar with the technical portion, and we can all move forward with a faster and often more efficient deposition process.