July 27, 2020 Practice Points

Stipulated Deposition Protocols to Consider During COVID-19

A few tips for before, during, and after a pandemic-era deposition.

By Maria L. Kreiter

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Parties conducting a deposition during the COVID-19 health crisis should consider negotiating protocols in advance. Protocols to consider include the following:

Prior to Deposition

  • The deponent shall identify any technical, health- or safety-imposed, or other limitations within an agreed upon time before the deposition. Questions to ask: Does the deponent have video and audio computer and internet capabilities sufficient to be deposed remotely? Does the deponent object to others attending the deposition in person?
  • Within an agreed upon time before any deposition, all counsel shall notify the other parties of their plans for attendance, including whether counsel plans to attend remotely or in person and, if remotely, whether by video or phone.
  • If more than one attorney will attend the deposition for a party, counsel for that party shall designate one of the attendees as lead counsel who will defend or question the witness.
  • Counsel for all parties are to have equal access to the location at which the witness will be attending the depositions.
  • If counsel will require a witness to review hard copies of documents or objects during the deposition, that party must ensure the hard copy is received no less than 48 hours before the witness is required to touch it.

During and After the Deposition

  • No one may record the deposition other than the court reporter.
  • No counsel shall communicate with the deponent during testimony by text, chat, or other means not memorialized in the record. The deponent may speak privately with his or her counsel when a question is not pending or to vet concerns regarding privilege, provided that is noted in the record that the basis for the private communication is to vet the privilege concern.
  • Any chat features of the platform used to conduct a remote deposition must be disabled.
  • The court reporter will circulate a telephone number for use by the attendees to inform the court reporter if a lead counsel becomes inadvertently disconnected from the deposition or is otherwise experiencing technical difficulties.
    • If a lead counsel becomes inadvertently disconnected from the deposition or experiences technical difficulties, that fact shall be noted on the record as soon as the parties become aware and the deposition must immediately be suspended until that attorney has rejoined and has full access to both audio and video.
    • If testimony has continued while a lead counsel was inadvertently disconnected from the deposition or experienced technical difficulties, the court reporter shall read back the missed testimony, so that the lead counsel who was absent or had technical difficulties has an opportunity to object to questions transcribed in his or her absence.
    • If a deposition is suspended due to technical difficulties, the time consumed by the suspension does not count toward any applicable time limitations.
  • Before displaying the document to the deponent, counsel must first (1) identify it for the record, (2) have it labeled as an exhibit, (3) provide a copy electronically to all other lead counsel, and (4) obtain confirmation that all other lead counsel received the document.
  • A witness is entitled to see exhibits in full before answering questions, if the witness indicates a need or desire to do so; counsel cannot limit deponents view to a particular section of a document over the witness’ objection.
  • If, during the course of questioning, a witness wishes to review a document that is not being displayed or referenced on the record, the witness must first state their intent to do so, and fully identify the document before reviewing it. The document must be uploaded and available to all lead counsel.
  • The lead counsel who questioned the witness shall provide a copy of any documents used with the witness to the court reporter and to all parties within 24 hours of the deposition’s conclusion, if a copy of that document was not provided in advance. 

Maria L. Kreiter is a shareholder with Godrey & Kahn S.C. in Milwaukee, Wisconsin.


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