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Tips and Trips for Making the Most of Remote Depositions

Mary Hershewe and Stephanie A Koltookian


  • Remote depositions have become essential during COVID-19, offering flexibility and cost savings but posing new challenges for litigants.
  • Attorneys can increase comfort and effectiveness with remote depositions by planning ahead, considering rules, selecting a platform, ensuring witness readiness, and addressing logistical issues.
  • It's crucial to anticipate and prepare for technology and connection issues, as well as to establish procedures for exchanging exhibits and managing potential disruptions.
  • Litigants can challenge remote deposition requests by seeking protective orders if they can demonstrate specific harms, though courts are generally favorable towards remote depositions amid the pandemic.
Tips and Trips for Making the Most of Remote Depositions
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Remote depositions have experienced a dramatic increase in popularity since the onset of COVID-19. First used decades ago, remote depositions offer litigants flexibility and the potential to save costs. However, this unique platform comes with its own challenges and pitfalls. This is especially true during the COVID-19 pandemic. Many litigants are turning to the platform not out of choice or desire but due to necessity.

For many attorneys, this is a new and uncomfortable way of litigation. However, it does not have to be. By planning ahead, litigants can increase their comfort, efficiency, and effectiveness with remote depositions. Doing so can be particularly helpful in situations where litigants would prefer to take the deposition in person but are forced to use remote technology out of necessity or due to local regulations. 

To help with transitioning from in-person to remote depositions, we advise litigants to reflect on a few areas: (1) applicable rules and regulations, (2) selecting a platform, (3) ensuring the witness can testify remotely, and (4) proactively planning for the remote process and preparing the witness to give autonomous testimony. In addition to these areas, attorneys can also increase the chance of a positive remote deposition by planning for connection issues and exhibit exchange issues. Finally, we also briefly discuss how to challenge an opponent’s request to take a remote deposition.

Determining the Applicable Rules and Regulations

First, litigants must determine whether remote depositions are allowed under the applicable rules. For example, in federal court, depositions may be held by remote means pursuant to court order or if the parties reach a stipulation. See Fed. R. Civ. P. 30(b)(4). Litigants should also investigate any potential local rules, chamber rules, and applicable COVID-19 orders. If a motion will be needed to take a deposition remotely, the party seeking the deposition should identify the factual basis to support taking the remote deposition early so that motion practice is timed to ensure that existing discovery deadlines can be met.

If research reveals that the jurisdiction does not have specific rules for remote depositions, the parties should discuss and seek to reach agreement on the ground rules for the remote deposition. The attorney seeking to take the deposition should consider how the deposition will progress and develop a list of proposals before reaching out to opposing counsel.

Selecting a Platform

An easy starting place to explore available platforms is to reach out to a court reporting vendor to help select and manage the video platform. We encourage attorneys to ask if the court reporting vendor has a preference on the platform. Using a video service the court reporter prefers or is familiar with can help streamline the deposition and minimize technology issues. The video manager will often be familiar with a variety of platforms and can help troubleshoot issues during deposition as they arise. If the vendor does not have a preference, the litigants should make a selection. Discuss the benefits of and likely problems with the various platforms to ensure the best choice. Litigants should also confirm that the platform can host the necessary secured connection and that all the participants have access to the selected platform well in advance of the scheduled deposition.

Ensuring the Witness Can Testify Remotely

Litigants should not assume that every witness will have access to the necessary technology and skills needed to navigate a remote deposition. It is advisable to discuss who will take responsibility for ensuring that the witness has access to the necessary technology, including a computer with a camera, a secured connection, and a reliable internet connection. Along with ensuring the witness’s access to the necessary technology, litigants should also provide the witness with general instructions and guidance on the logistics of the remote deposition. This should include details on how to operate the camera and interact on the platform, including using functions such as mute, camera on/off, and screen sharing. For represented witnesses, the deponent’s attorney should be included and involved with orienting the witness to the technology. For unrepresented witnesses, the litigant seeking to depose the witness might need to take a more active role in ensuring the witness can use the remote deposition platform.

Parties should also consider whether the witness should participate in the test run of the platform. Having the witness participate in a test run can greatly minimize potential issues the day of the deposition.

Planning for the Remote Deposition Process and Preparing the Witness to Give Autonomous Testimony

Once the litigants have identified the legal procedures required to take a remote deposition, selected a platform, and confirmed that the witness can reliably access the platform, the parties should discuss the logistics of how the deposition will be conducted. By proactively planning for the remote process, litigants can enhance their control over the environment and increase the likelihood of receiving autonomous testimony.

We suggest proactively planning for the remote process by addressing the topics below. While these areas are certainly not all that should be addressed, they provide a good starting point for discussions with opposing counsel on the remote deposition.

  • Rules for administering the oath in the deponent’s location. Litigants should identify the rules that apply to the administration of the oath. The oath ensures autonomous and truthful testimony, and the place where the deponent takes the oath and answers questions determines the location of the deposition under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(b)(4). Therefore, to the extent special rules apply as to who may administer the oath (and where), the litigants should investigate the jurisdiction’s rules before the deposition begins. As an example, some jurisdictions may require the officer administering the oath to be in the same room as the deponent (unless COVID-19 modifications apply).
  • Participation, including being physically present with the witness. The parties, in conjunction with the witness, should discuss who can participate remotely and who can be physically present with the witness. For the litigant requesting the remote deposition, it may be an uphill battle to contest having the witness’s counsel or in-house counsel present with the witness during the remote deposition, if the witness desires to have counsel in the room during the deposition. In our experience in defending remote depositions, being physically present provides additional reminders to the witness that even remote depositions are proceedings that should not be taken lightly. However, the parties should discuss in advance who will be allowed to participate or attend the deposition. This is especially relevant for witnesses who intend to testify from their home. Attorneys should ask, before the deposition, whether anyone else will be allowed in the room with the witness, such as the witness’s lawyer or other client representatives. If observers are not allowed, determine how to ensure deposition rules are being followed during the deposition. If observers are allowed, the parties should identify safeguards to prevent improper communication between the witness and other people in the room (whether the witness’s lawyer or another person). For example, the attorneys should consider requiring each person in the room with the witness to log in to the remote platform. The litigants should also discuss who will counsel the witness on laws, rules, or guidelines, such as restrictions on non-attorney discussions about the testimony during the deposition process.
  • On-camera requirements. Litigants should also discuss any “on camera” requirements. The parties may choose to have all participants stay on camera at all times (excluding breaks) or only the witness and attorney representing the deponent. If autonomous testimony is a concern, it may be beneficial to require the presence on camera of all participants.
  • Access to other materials, devices, and resources. Litigants should determine before the deposition whether the witness may access or use other materials, devices, or resources during the deposition and, if so, what and when. This discussion may include whether the witness can access email and social media and conduct internet research during breaks. If the parties agree to allow the witness to access outside materials, their agreement should detail the exact circumstances under which such access and use are allowed. Attorneys may want to reach an agreement that deponents will enable “do not disturb” on their electronic applications during the deposition.
  • Breaks. The parties should consider whether they need a platform that provides breakout rooms for breaks. Depending on the scale and size of the litigation, it may instead be viable to propose setting time limits on breaks with agreement to turn off audio and video for all participants during the breaks. The party defending the witness should make sure to have an available line of communication to reach the witness during breaks.
  • Handling confidential information. If the deposition will involve confidential information, the attorneys should consider selecting a remote deposition vendor that can enable password protections or “virtual waiting rooms” to allow only certain people to view the video feed during the deposition.

Once the parties reach an agreement on the method and manner to conduct the deposition, they should confirm it in writing. Attach the agreement or, at the very least, reference the parties’ agreement in the remote deposition notice. If the litigation is particularly contentious, it may be worth filing the parties’ remote deposition procedure stipulation with the court.

As a practical matter, setting up a remote deposition (including reaching the remote deposition stipulation) will take more time than setting up an in-person deposition with a traditional deposition notice. It is important to plan ahead. Further, if opposing counsel resists the remote deposition, motion practice may be required to obtain a court order permitting the deposition to proceed by remote means. Most courts are favorably inclined toward remote depositions.

Planning for Connection Issues and Deposition Exhibits

While remote deposition technology continues to advance, it rarely operates seamlessly. We strongly recommend thinking about and planning for technology and connection issues, including problems with the exchange of deposition exhibits.

  • Planning for connection a loss. Attorneys should become familiar with the platform, and plan for possible connection or technology issues, to ensure the deposition progresses in a timely and efficient manner. Participants should decide whether to test the platform prior to the deposition. Testing the platform can bring to light technology issues that could delay or prolong the deposition. The parties should also discuss what will happen in the event of a connection loss. For example, the parties should discuss how they will alert one another (and the witness) if the connection is lost, and whether the deposition will be automatically halted, continued, or terminated in the event of a connection loss.
  • Planning for other technology issues. The litigants should discuss what will happen in the event of other technology issues, such as errors in the platform or problems with screen sharing. Even though the parties cannot anticipate every issue, creating a plan can greatly minimize any delay caused by such issues. For example, the parties should consider whether there should be a point person to handle contacting the participants in the event the platform crashes.
  • Exchanging exhibits. Though the prospect of using electronic exhibits the day of the deposition may be appealing, this plan is fraught with problems if the deponent or attorney cannot access the materials. Such issues carry the potential for immense delay, cost, stress, and disorder, and could jeopardize the remote deposition. For this reason, we recommend exchanging deposition exhibits electronically at least one day before the deposition. This will involve setting a time by which the electronic or hard copies will be sent and creating a plan to handle any possible delay or errors in the deposition exhibit exchange process. For example, if the link or hard copies do not arrive by the day of the deposition, opposing counsel could be required to notify the attorney taking the deposition and allow that attorney to re-send the link before the deposition begins.

Resisting a Remote Deposition

Despite good-faith negotiations, it may not be possible to reach agreement on conducting depositions remotely or on a remote deposition protocol. For litigants who resist moving forward with remote depositions or who believe the proposed procedure for conducting the remote deposition is unworkable, the procedural mechanism to avoid a remote deposition or to modify the protocol is a motion for a protective order. See Fed. R. Civ. P. 26(c)(1). Winning a motion for a protective order will likely require more than general allegations that remote depositions are cumbersome or difficult. In our experience, courts have become increasingly leery of delaying discovery for COVID-19.

Advocates should try to support their motions for protective orders with evidence—such as a declaration—of specific harms that apply to taking the deposition of the witness by remote means as proposed by the opposing party. For example, what competing interests on the deponent’s time have been added since COVID-19? Is the deponent required to control remote learning and supervise children as schools proceed either remotely or in a hybrid system? Is the deponent an essential worker? Is there time in the scheduling order to push back depositions (or are the parties willing to entertain an extension of discovery deadlines)? Does the deponent have access to a reliable internet connection?

Based on the trend toward allowing more remote depositions, we recommend litigants choose their battles wisely. If the core problem with a remote deposition request is an issue with the protocol (not the fact that the deposition is being taken remotely), we recommend making a narrow challenge to change the protocol. Further, a successful challenge to the protocol should work in both parties’ favor for future requests for remote depositions made by either party.


As the pandemic continues, it seems likely that the use of remote platforms will continue. We may see a permanent increase in remote depositions, especially as videoconferencing providers adapt their technology to address litigation needs and create platforms specifically for depositions. Though remote depositions come with challenges, litigants can prepare for these obstacles and, by doing so, will maximize their remote depositions.