Remote depositions necessarily offer less visibility into the deponent’s demeanor, body language, and off-camera conduct. Assessing the deponent’s credibility through the computer screen can be difficult, but remain alert for signs that the witness may be dissembling. At the start of the deposition or any other appropriate time, ask the deponent if anyone else is listening in or passing messages, including by text or email. Ask the deponent if he or she is referring to notes or other documents—either on the screen or in hard copy—when testifying. And don’t hesitate to ask the deponent to move his or her screen or camera so that you can see directly whether the witness is consulting extrinsic material or testifying based solely on recollection. Any material consulted or generated by the witness during the deposition should be clearly displayed for the record, even if that means asking the witness to hold documents up to the camera so that they may be recorded or verbally read into the record. Taking a screenshot can also help preserve the record, even when an uncooperative witness will not read or otherwise confirm the contents of such materials.
If you’re defending the deposition, encourage your witness to speak clearly and slowly when answering questions. If the deposition is videotaped, remind the witness to be mindful of where the camera is aiming. Technical hiccups are not uncommon, and the deponent should proceed cautiously if the deponent believes he or she has missed any part of the question or if you, as the defending attorney, appear to be speaking or asserting an objection. Make sure the witness understands that his or her audio and video will remain on, even when the deposition goes off the record, unless the witness takes steps to turn them off. Witnesses who are permitted to confer with counsel during breaks should do so by phone in a different room.
Counsel should start thinking about potential exhibits well in advance of any remote deposition. If your witness will be testifying, make sure the witness has printouts of any lengthy documents that he or she may wish to consult in hard copy during the deposition. It is particularly important, for example, that expert witnesses have paper copies of any reports and analyses about which they may be questioned. Remind these witnesses not to mark up the documents, as any notes will be discoverable.
If you are conducting the deposition, consider whether to send the deponent and the deponent’s counsel paper copies of exhibits in advance of the deposition. This ensures that technical glitches or the witness’s own lack of familiarity with the deposition technology will not prevent you from questioning the witness about documents. Of course, in many circumstances, deposing counsel may not wish to give the deponent and the deponent’s counsel advance notice of the exhibits that may be used at deposition. If the element of surprise is important, the parties can agree that the witness will not open the exhibits until the time of deposition, and the deponent can confirm this arrangement by showing the unopened exhibit envelope on screen.
There can be advantages to using electronic exhibits sent through the remote deposition platform. Both counsel and the witness may be able to more easily navigate financial spreadsheets and other technical material on their computer screens, especially if their understanding of such material is informed by underlying data or formulas (which may not be visible in printed exhibits). The deposing lawyer can also more easily zoom in and focus the witness on the relevant excerpt of a lengthy exhibit, ensuring there is no misunderstanding about which portion of the document is being discussed. And, if a deponent’s testimony requires the deponent to explain the process of drafting or finalizing a document, that process can often be demonstrated more clearly by manipulating the electronic document (such as through highlighting), similar to how you might demonstrate the point at trial. Last, but certainly not least, the electronic platform permits you to quickly and easily introduce a new, unexpected exhibit to the deposition, without the delay or hassle of waiting for a break to make paper copies.
If you’re defending the deposition, the usual admonition that the witness become familiar with the full document before answering questions still applies. In remote depositions, the deposing attorney may opt to display exhibits through the screenshare function and make visible only a particular page or excerpt of a document. In that circumstance, the witness and defending counsel are unable to flip through the full exhibit and review other parts of the document. The defending attorney should insist that the deposing lawyer send full electronic copies of any exhibits through the remote deposition platform and remind the witness that he or she is not limited to reviewing only what appears on the screen.
In the early days of the pandemic, litigators navigated remote depositions with few rules and little guidance from courts. Remote depositions are here to stay, but the days of making it up as you go along are not.
Nearly every state now has a rule expressly permitting remote depositions by stipulation of the parties or by court order. Some, like the newly adopted Rule 37 of the Commercial Division of the New York Supreme Court, identify specific factors that trial courts must consider in deciding whether to order remote depositions. Some individual judges have gone further and adopted detailed protocols that govern all aspects of remote deposition practice. Given that flurry of new—and constantly evolving—rules, it is more important than ever that attorneys remain informed about the most up-to-date authorities in the jurisdictions where they practice.
In most jurisdictions, a court can order remote depositions for good cause, even if the other party objects. The good-cause standard gives trial judges broad discretion over whether and when remote depositions are appropriate. Early in the pandemic, there was judicial consensus that the pandemic alone provided good cause to justify remote depositions. A number of federal and state courts even issued standing orders requiring remote proceedings in all (or virtually all) matters. But many of those courts have since relaxed those orders or allowed them to expire. And as vaccines became widely available, courts staked out differing views on remote depositions. Some courts maintain that remote depositions are the “new normal” and freely find good cause to go remote. Other courts will order remote depositions over objection only in special circumstances.
As the pandemic enters its third year, some attorneys may object to proceeding remotely. But such objections should not be made lightly, and attorneys should consider carefully whether their client may be better served by proceeding remotely. Even where courts have denied requests for remote depositions, they have often ordered parties to follow safety protocols (such as social distancing and masking) that may make an in-person deposition less appealing than in pre-pandemic days.
If you nevertheless decide to oppose proceeding remotely, recent case law identifies the sorts of circumstances courts may consider when deciding whether to require a deponent to appear in person, such as the following:
- The deponent is a party or a key witness whose testimony is central to the claims or defenses in the action, and the deponent’s credibility is likely to be at issue.
- The deponent (or counsel) is not fully vaccinated against COVID-19 or has an underlying health condition that increases the risk of serious illness.
- The deponent lives in the United States or can travel to the noticed location without being subject to burdensome travel restrictions or quarantine requirements.
- The party requesting the in-person deposition can demonstrate misconduct or other problems at prior remote depositions in the case (such as improper coaching, attendance by unauthorized parties, or an inability to review documents).
These considerations (and the weight that courts give them) will undoubtedly continue to evolve in each new phase of the pandemic. But one thing is certain: Remote depositions are no longer the rarity that they once were. Even after the pandemic, proficiency in remote depositions will remain a necessary skill for any litigator.