Five Tips for Conducting Remote Video Depositions

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COVID-19 has changed the way we practice law. Attorneys today must find new ways to conduct discovery and meet case deadlines while simultaneously adhering to various stay-at-home orders. Remote video depositions are one of several useful tools for doing so. Here are five practical tips to consider when scheduling and taking remote video depositions.

1. Participant location and document requests. A typical deposition will include the deponent, court reporter, opposing counsel, deposing counsel, and sometimes an interpreter and a videographer. Agree ahead of time where each participant will be located during the deposition, whether each will be appearing remotely or whether some will be socially distancing in the same room. And make sure the deponent will be in a quiet, well-lit area.
   
   To avoid any misunderstandings, your deposition notice should specify that the deposition is being taken remotely via video. The notice should also state where the deponent will be located and how the other participants will appear. We have used the following language without incident in numerous remote video depositions: “At their option, the witness and her counsel will appear in person at her counsel’s office. Defense counsel, a court reporter, and an interpreter will participate in the deposition by videoconference.”
   
   Finally, if you are seeking documents from the deponent, request that they be produced several days before the deposition. This will give you a chance to review and, if appropriate, use them during the deposition.
   
2. Avoid technical issues. When scheduling the deposition, ensure that the deponent has access to a computer or tablet with a video camera and the minimal technical requirements to run necessary software. It is also essential that the deponent has access to a suitable internet connection. If he or she does not, ask your court reporting service to provide a tablet and a mobile wi-fi hotspot. More and more court-reporting services offer this option today. If yours does not, seek one that does.
   
   It is also important to perform a test run a few days before the scheduled deposition. The court reporter should assemble the deponent and all other participants on the video-deposition platform to ensure that there are no technical issues. This includes confirming that the participants can upload and share exhibits, checking internet speed, and testing audio and video functions.
   
   Before the deposition, you should also familiarize yourself with the video-deposition platform so that you can easily navigate it during the deposition. Take some time to run the platform and acquaint yourself with its most important functions, such as exhibit-screen sharing. This is also a good opportunity to confirm that your background and lighting are video-friendly.
   
3. Record the video. Remote-video depositions are generally not automatically recorded. Unless there is some strategic reason not to, you should tell the court-reporting service ahead of time that you want it video-recorded. A video can prove invaluable, particularly if the deponent is unavailable at trial or if something unexpected occurs during the deposition. And because the deposition is being conducted via video anyway, there should not be much of an upcharge for this option.
4. Close unrelated programs. Only the video-deposition platform should be open during the deposition. Close your email, web-browser, Microsoft Word, and any other programs you usually keep open. This will eliminate the chances of you inadvertently displaying to everyone your confidential e-mails, your deposition outline, or any other sensitive materials. We have seen this happen. Trust us; you do not want it to happen to you.
5. Preliminary instructions. At the outset, right around the time when you instruct the deponent about the deposition rules, we suggest broaching the issue of potential outside interference. Questions and instructions such as the following have proven helpful to us:

• Is anyone else in the room with you?
• If anyone else comes into the room at any time, please let me know.
• Are you looking at anything other than the screen upon which the deposition is being taken (e.g., a notepad, cellphone, documents, papers)?
• Unless I instruct you otherwise, please do not look at anything else while we are on the record.
• Answer all questions by yourself. Do not look to anyone or anything else for help in answering questions. If you cannot answer a question by yourself, let me know.
• You agree not to communicate with anyone else, besides me, in any way while we are on the record? This includes not checking email, text messages, or any other forms of communication.

With these simple tips in mind, you should avoid most basic video-depositions pitfalls. Good luck!

Mihai Vrasmasu is a partner and Vannessa Offutt is an associate in the Miami, Florida, office of Shook, Hardy & Bacon LLP. 

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