August 04, 2021 Articles

Making the Case for Continued Virtual Proceedings and Depositions in a Post-COVID World

A discussion of the benefits, for women and young lawyers in particular, of continuing virtual hearings and depositions after the pandemic.

By Danielle Myers and Erika Oliver
Virtual depositions allow for better work-life balance, save time and money, and reduce pollution.

Virtual depositions allow for better work-life balance, save time and money, and reduce pollution.

This is a condensed and edited version of a Sound Advice conversation discussing the benefits, for women and young lawyers in particular, of continuing virtual hearings and depositions after the pandemic, including better work-life balance, cost savings, reduction in air travel, and increased learning opportunities.

As working mothers of young children, we both have greatly benefited from participating in remote proceedings during the COVID pandemic. Because of our own positive experiences with virtual proceedings, we were both pleased to read about U.S. District Judge James Donato’s decision to continue holding virtual status conferences “ad infinitum” in most of the cases he presides over, even after COVID-19 vaccinations become widespread, in In re Google Play Consumer Antitrust Litigation, No. 5:20-cv-05761 (N.D. Cal. Dec. 2, 2020). Here, we share a condensed and edited version of our conversation discussing Judge Donato’s policy and hope other courts consider continuing to permit virtual civil court proceedings, and certainly when all parties consent to do so.

Danielle Myers (DM): In December, Judge Donato mentioned on the record at a status conference that he is going to continue holding virtual status conferences even after COVID-19 vaccinations become widespread. The reasons he provided for doing so are not only the time and money savings but also the benefits to attorneys’ work-life balance. In a follow-up article about that decision, Judge Donato noted that, before becoming a judge, he litigated complex cases in courts around the country and often would fly for several hours and be away from home for days on end just to attend a 30- to 45-minute status conference and then turn around and fly back. Judge Donato noted in a subsequent article the beneficial impact of having virtual proceedings on reducing air pollution and increasing opportunities for young lawyers. One of Judge Donato’s observations was that he thought remote hearings are huge and revolutionary. So I just wanted to ask you, Erika, about your experiences litigating securities class action cases in courts across the country.

Erika Oliver (EO): Since March 2020, I’ve been litigating cases coast to coast in San Francisco and New Jersey, and the ability to attend depositions and court hearings has been kind of a game changer for me this year because, without virtual proceedings, I otherwise might have not been able to attend these proceedings. So as one example, I was the second-chair attorney for a deponent in Denmark.

DM: Before COVID, participating in that one deposition would have taken you several days of travel—a day to travel there, a day to get used to the time zone, a day for the deposition, and another day back—maybe a half of a week to a week away from your kids and your other cases.

EO: Yes, exactly. Even though we did the deposition in the middle of the night due to the time difference, it was so much better for me because, instead of spending those five days away from the family, I was able to just go home, see my kids, and then the next day get up and do productive work on some of my other cases. So I do agree with Judge Donato. Some of the benefits Judge Donato mentioned for continuing remote proceedings were improving work-life balance and freeing up time for productive billing on other matters, and I completely agree with that. Has that been your experience as well?

DM: Yes. I became a mom 16 months ago and have a toddler at home. I’m also a single mom with no in-town family, so I don’t have reliable help at home to take over when I have an obligation outside normal work hours or a hearing to attend outside of San Diego. Remote proceedings have been essential for me because I don’t have to worry about traveling with my son or trying to scramble to find a caregiver. I had a hearing in a securities case in Pennsylvania federal court about a month and a half after I came back from maternity leave. Had it been an in-person hearing, I would have had to take my then five-month-old son with me on a plane during COVID, which I’m not sure I would have been willing to do. I may have had to ask one of my partners or associates to handle it. But because it was a remote hearing, I was able to focus on the case and do the best job for the client and the firm while also being home every night for my son. Having remote proceedings has been a game changer in terms of access and the ability to continue doing my job well. I agree with what you said and what Judge Donato said: Ultimately, remote proceedings have improved my work-life balance. Instead of wasting time—traveling to the airport, waiting at the airport, maybe the WiFi isn’t so great on the plane, you lose the connection at some point over the country, and you lose productivity time—now, with remote hearings and depositions, there is no downtime. When it’s done, you move on to the next thing. I’m a big fan. I don’t know how you feel.

EO: I’m a big fan as well, and I kind of echo Judge Donato’s hope that, in this post-COVID world we are hoping to see soon, the ability to do things remotely by Zoom, where it is appropriate, will still be an option. Not to say that it’s easy—I know that we both feel there are still difficulties. But it’s much easier. Like you said, there isn’t a lot of wasted time and I can spend time that otherwise would have been wasted on travel doing things at work that need to get done or spending time with my children. I’m really hoping to see that some of that will continue once we have a widespread vaccine.

DM: This has got to be game changing in terms of access for you as a younger associate at the firm. There’s not many times a partner would say it would be worth the added expense that a court or client wouldn’t approve to travel from San Diego to New York and back to watch a 30-minute status conference or a half-day deposition. But now, because these proceedings are remote, you can participate, watch in real time, and learn from all of these opportunities, and there is not an added expense to them. Have you been able to seize that opportunity as well?

EO: Oh, absolutely. In addition to having the depositions where I am preparing and second-chairing, there are lower level depositions that the firm wouldn’t otherwise go to the expense to send someone to just observe. I am able to do that because there is no extra expense—it’s just whether or not I have the time to pop in on it. This year, I have been able to observe and take these learning opportunities to watch our senior attorneys take depositions and to take notes on what they do so I can put it into practice.

DM: It’s just night and day what you can learn watching something in real time versus reading a transcript after the fact. There is so much that goes unsaid with objections and sometimes a heated argument that does not jump off a page, and you can learn how someone defuses an otherwise heated situation that does not translate from the transcript. My hope is that having remote depositions and status conferences—certainly the ones that are appropriate to continue having virtually—continues because, both as to the work-life balance and the teaching tool for our younger attorneys, it is invaluable.

One of Judge Donato’s final comments during one of the interviews was that getting virtual hearings to stick is going to require more than just a couple of judges advocating for change, and he encouraged lawyers and the public to urge that hearings be kept remote even after the pandemic is behind us. We hope that other attorneys and judges around the country continue, when it makes sense to do so, to hold virtual hearings and depositions for all of the reasons Judge Donato noted: It allows for better work-life balance, it saves time, it saves money, it reduces pollution, and it is a great tool for young lawyers.

Danielle S. Myers is a partner and Erika Oliver is an associate with Robbins Geller Rudman & Dowd LLP in San Diego, California.


Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).