Although a telephonic deposition is sometimes appropriate, it is preferable to record expert witness depositions by video. Multiple vendors offer platforms to conduct depositions by streaming video. Evaluate—and test—the capabilities of several platforms before stipulating one. Then, practice extensively with the selected platform. This includes running any of the platform’s “self-test” options.
In addition to stipulating who may attend the remote deposition generally, you should consider stipulating who may be physically present with the witness. For example, you could stipulate that only the witness’s counsel and a person who provides personal or technical assistance may be physically present with the witness. You must also determine how attendance will be controlled and noted on the record.
Consider requiring all attendees to join the deposition a set time prior to the noticed start time in order to confirm equipment operation, internet connections, audio and visual quality, camera position and lighting, and any other related logistical matters.
Federal Rule of Civil Procedure 30(b)(5) allows the parties to stipulate that a deposition need not be conducted before an officer appointed or designated under Federal Rule of Civil Procedure 28. The parties should stipulate that the court reporter may administer the oath to the witness via the remote platform, without objections later.
Audio and Video Feeds
If you choose to use a video-streaming platform to conduct the deposition, determine how to position and maintain the witness’s video feed. For example, decide how the witness’s camera will be positioned, including how much of the witness will be visible on camera. Most video-streaming platforms allow users to determine whose video feed will be displayed. For example, Zoom allows users to pin, or “spotlight,” specific video feeds so that they are always visible, or to show only the active speaker’s video feed. Stipulate whose video feed(s) will appear on the screen at any given time.
Further, stipulate which video feed(s) will be part of the official video record. For instance, you may stipulate that the official video record will be the witness’s video feed only, and that the video feeds of the questioning attorney, defending attorney, and court reporter will not be part of the official video record or used for any purpose at trial. For off-the-record breaks, decide whether the witness’s video feed will remain continuously on or whether the videographer will stop the recording.
Also, specify what audio feeds will be allowed. Typically, to avoid feedback, participants should join the audio feed via computer or via phone, but not both. Consider stipulating that all nonspeaking participants must remain on “mute” during the deposition.
In a remote deposition, the witness can more easily send and receive communications outside of the questioning attorney’s presence. The protocol should address this reality. For example, the protocol could prohibit counsel other than the questioning attorney from communicating with the witness via text, email, electronic means, or by any other means, and require that any such communication be disclosed to all participants. You could also stipulate that the witness’s attorney may communicate with the witness during breaks, to the extent permitted by the Federal Rules of Civil Procedure or any applicable rules of evidence and the local rules for your jurisdiction.
It is critical to stipulate how the parties will distribute, identify for the record, and mark the exhibits. Many virtual platforms allow electronic exhibit distribution during the deposition. You could also choose to distribute copies of exhibits by email or hard copy prior to the deposition.
If you agree to share exhibits electronically, determine how to conduct such sharing. If your platform has an exhibit-sharing function, then once you share the exhibit, the full document is shared with all participants. But if you use screen sharing, the questioning attorney remains in control of the document, and other participants can see only the part of the document being shared. Screen sharing raises document-authentication issues, and the defending attorney and witness may request that the entire document be shown.
Finally, consider how a participant might write or draw on an exhibit, and how that altered document will be saved and marked as a new exhibit.
Developing a protocol to govern remote depositions may take time and lengthy negotiations between the parties, but resolving these logistical issues before the first deposition takes place will ultimately save time and frustration later.
Melissa Romanzo is an associate at Hunton Andrews Kurth LLP in Charlotte, North Carolina.