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February 18, 2021 Article

Remote Depositions: The New Frontier

Tips to prepare for a remote deposition.

By Helene Hechtkopf

When the COVID crisis hit and we were all suddenly thrust into involuntary work-from-home arrangements, I was in the midst of discovery on several cases. At first, we agreed with opposing counsel to “wait a few weeks” in the hope that we could continue with depositions as usual. But after a few weeks, we realized there would be no imminent return to in-person depositions. So we were forced to forge ahead and figure out how to hold depositions remotely. I have now been involved in over 30 remote depositions and have learned lessons the hard way. Below are some tips for those preparing to take or defend a remote deposition.

Prepare Your Witness

When your witness is not in the same room as the attorney defending the deposition, preparation in advance is even more important than in a “normal” in-person deposition.

In addition to reviewing the material you expect your adversary to cover during the deposition, it is important to practice using the technology you will be using. You must, of course, consider the technological sophistication of your witness. But doing a dry run will make almost any witness feel more comfortable. Make sure to practice signing into the virtual deposition room and opening exhibits using the exhibit-sharing software.

While it is important in any deposition for the witness to pause for a moment before answering the question posed, this is even more important in a virtual deposition. The witness will be watching the questioning attorney very closely and cannot pick up on your body language that would otherwise indicate that the witness should pause for you to object before answering. Also, due to the slight delay that different internet speeds cause, your objection may disappear into the ether unless the witness has paused. Remind your witness to pause for an extra-long time—what feels like too long—before answering.

Finally, gone are the days of chatting with and reassuring the witness on the walk to the bathroom during a break. Plan with your witness to meet during breaks (if it is allowed in your jurisdiction). I prefer to have a separate Zoom meeting set up and to sign into that meeting on a separate device. For example, I will use my computer for the deposition and my cell phone for the breakout room. But some court reporting companies will have the court reporter put you and your witness into a breakout room if you ask.

Assemble Your Files

Even though the deposition is virtual, you may still find it helpful to have your own notes and exhibits on paper so that you can flip through them.

Depending on the exhibit-sharing software that you will be using, you may be able to upload all the exhibits you intend to use in advance—even those you are not sure you will use. Then, during the deposition, you can decide whether to mark them and introduce them as exhibits. Because your adversary will likely see the file names, make sure all file names are innocuous!

One nice benefit of a remote deposition is that you can send a quick note to a paralegal or attorney in your firm to pull a document you had not expected to use during the deposition, and you can get it on the screen very quickly. Regardless of what technology you use to share exhibits, make sure you have a plan for what to do if you need to introduce an unexpected exhibit—whether you screen-share a one-page document, mark it, and email it to opposing counsel, or upload it to your exhibit-sharing platform.

Negotiate with Opposing Counsel

Before a deposition, reach out to opposing counsel to coordinate how the deposition will proceed.

Now is the time to make sure your adversary will not object to a remote deposition. A variety of courts throughout the country have quickly established a precedent that, at least in civil cases, remote depositions are the new normal. An adversary’s nervousness about the technology or preference to be in the room with the witness will not be enough to force the parties together into a room for an old-fashioned deposition during a pandemic. For example, Judge Valerie Caproni of the Southern District of New York rejected an attorney’s demand to take a deposition “masked and socially distant” so that the questioning attorney could make “direct eye contact” with the witness. The judge noted that “the oft-repeated six-feet rule may not be sufficient in a high-risk environment, such as an indoor setting with prolonged exposure.”

Some counsel like to have the entire deposition be remote, with each party in their own home or office. Others prefer to have the witness in the same office building as the defending attorney but in a separate room. If you are choosing a court reporting company that charges “per seat” at the remote deposition, you should disclose that to your adversary immediately.

Stipulations can be a helpful tool to determine in advance to how the remote depositions will occur. Such a stipulation could include what to do if a party has technology problems during a deposition, how you will account for time for exhibits to load, and who can be in the room with a witness. Some attorneys like to stipulate that the court reporter can swear in the witness remotely, while others prefer to simply agree on the record at the start of the deposition. In addition, it may be appropriate to stipulate regarding exhibits. For example, if you intend to use hard-copy exhibits that you will send to your adversary, your stipulation could include provisions prohibiting the adversary and his or her client from opening the seal on the envelope until they are on camera at the deposition.

With the right preparation, you can make sure that the remote deposition goes as smoothly as possible.

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Helene Hechtkopf is a commercial and employment litigator at Hoguet Newman Regal & Kenney, LLP, in New York, New York.

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