Remote Depositions Keep Cases Moving In Pandemic Times

In the world of high-stakes litigation, one can imagine a tense deposition, where an attorney implements a strategy to draw out the witness and looks for insights in the twitch of an eye, the slump of shoulders, a jittery leg.

Of course, as is true for so many areas of legal practice, the COVID-19 pandemic completely upended the process for taking depositions. Attorneys may have lost the opportunity to size up a deponent from across a table, but remote depositions have become a viable alternative thanks to sophisticated technology and careful preparations. 

“Tactically, there are things you can do when sitting across the table with non-verbal communication that are harder to do when you’re looking at a screen,” said Eric J. Marandett, a partner with Choate Hall & Stewart LLP, and a faculty member for Fundamentals of Taking and Defending Depositions 2021, a continuing legal education program of the Practising Law Institute. 

Even so, Marandett said his remote depositions have gone smoothly, and they offer efficiency and cost savings: “You don’t have to deal with the travel expenses and the lost time associated with travel.”

A good thing, considering nearly all depositions have gone remote. 

“I don’t think there’s any justifiable reason for people to be in rooms together with strangers … for an extended period of time,” said Robin A. van der Meulen, a partner with Labaton Sucharow LLP and a faculty member for the PLI program on depositions. In the few instances where litigants requested in-person depositions, “the courts have rejected those,” she added.

The Federal Rules of Civil Procedure have long allowed for remote depositions. Rule 30(b)(4) permits them and Rules 29(a) and (b) explicitly state they may be used for the same purpose as any other deposition. 

However, before the pandemic they “were few and far between,” according to Gerald A. Stein, a partner with Norton Rose Fulbright US LLP and the program chair for the PLI program on depositions. Occasionally, Stein said, depositions were remote if they were needed only to authenticate documents or they involved less important witnesses.

The pandemic has also led many state courts to issue temporary orders regarding oath taking. Oaths were normally administered in-person so it was easier to confirm a person’s identity, van der Meulen said. The new orders, which might come from a chief judge as an administrative order or from individual judges, authorize oaths to be administered remotely, she explained.

The Quirks of Virtual Questioning

The swearing-in method is just one of many differences. During remote depositions attorneys must also be mindful of the quirks of virtual interaction. 

“The problem is you can’t always hear people very well,” van der Meulen said. 

For instance, the microphone may be too close or too far away from a witness’s mouth, or there may be a lot of background noise. And then there is the problem of people speaking over each because of a slight delay.

“The conversations back and forth can be a little stilted for that reason, which makes it harder to get into a flow,” van der Meulen said. “It certainly makes it harder for the court reporter to accurately transcribe. … [E]verything takes a little bit longer than it might in an in-person situation.”

Stein recommended attorneys take extra care with their exhibits. 

“It’s much harder to control the flow of exhibits and what you’re showing the witness. And it takes a lot of time, because now you need the cooperation of the witness to figure out how to manipulate the screen. You rely on their cooperation to use a computer.”

Problems arise if the witness doesn’t want to cooperate or doesn’t know how to use technology, Stein added. 

“You might have to trust your opposing counsel a little more than you want [and] send the exhibits ahead of time.”

Another protocol may involve who gets to be in the room during the deposition, including someone who may not necessarily be on camera, Stein said. 

“If Witness One is being deposed and Witness Two is going to be deposed the next day, are they going to be sitting in the room, seeing the deposition? Because usually that’s not how it happens, but now there’s nothing stopping your next witness from viewing the deposition.”

Preparation Is Key

All these details require preparation, which is where remote depositions differ the most from their in-person counterparts. While van der Meulen noted there have always been protocols regarding such things as how many depositions each side gets to take, how long they can last, and the confidentiality of exhibits, to go remote means a whole other suite of preparatory agreements.

According to materials from the PLI program on depositions, these may include which technology platform to use and the need to test it before the deposition; an agreement to go off the record when technical issues arise; rules on who is allowed to be in the same room as the witness during the deposition; rules for the use of other forms of communication during the deposition like texting, chatting, emailing, and social media; an agreement that no one may communicate with the witness by any means during the on-the-record deposition; rules on use of the deposition platform’s chat functions and private breakout rooms; whether exhibits will be electronic or hard copy; and if paper, an agreement on how they should be handled.

Marandett said he hasn’t found exhibits to be an issue. In all the remote depositions he’s done, they’ve handled them electronically rather than sending hard copies ahead of time. 

This wasn’t because he was concerned about them being out in the world, but because, “we had the platform and real-time electronic access more closely approximates the way an in-person deposition works,” with all parties seeing the exhibit at the same time. In addition, Marandett said he hasn’t experienced any significant technical difficulties thus far.

“It can be smoother in a remote deposition than in-person,” he said.

An Audio-Visual Production

A big reason for this is no doubt the prowess of companies that have added remote-deposition services to the trial services they already offered, according to Marandett. The technician who runs things is often called a “hot-seat operator.” 

Trials these days — especially in complex cases with a lot of witnesses, exhibits and evidence — have taken on an aspect of show business, with high-tech providers making sure juries are presented with information quickly, clearly, and with a touch of style to help attorneys communicate their theory of the case. 

“The service [for depositions] is no different than what you see at trial. The hot-seat operator is the person who handles the exhibits during depositions, calls up the documents, and then blows them up and highlights as you go.”

If the budget supports it, using one of these trained technicians will dramatically enhance efficiency, according to the PLI materials.

These vendors “have a ton of experience in handling exhibits in electronic ways and that’s exactly what you have to do with depositions in a remote setting,” van der Meulen said. “They’re using those skills to present them to the witnesses and the parties and using their own platforms.” This new role, she added, is “really perfect for them.”

Cybersecurity

As with all communications platforms that connect people virtually, attorneys need to be aware of data privacy and security issues.

Van der Meulen mentioned that one of the early problems with Zoom was crashers and hackers taking over Zoom meetings. The incidents put attorneys on notice. 

“You definitely need to have a conversation with whoever is going to be providing your remote deposition platform,” she said. Security must be sufficient to ensure unauthorized people can’t “eavesdrop on your confidential deposition, and also to make sure that there are no hackers trying to take the transcript or the video. I think most vendors have that capability already, but it’s certainly a concern.”

Marandett said he expects there to be cybersecurity issues. 

“I’ve seen the implications of a data breach with documents held under protective order. I’ve not seen it in a deposition. We can’t ignore it, though.”

Plain, Old Malfeasance

Aside from bad actors out there in the cyber world, remote depositions also raise the possibility of bad behavior by participants. Although Marandett has not experienced it himself, “I do think we will see problems with less scrupulous lawyers and clients communicating by text,” he said. “There’s no real way to prevent that. You can get people to say on the record that they’re not doing it, but there is no way to enforce it.”

While van der Meulen thinks most lawyers are going to conduct themselves with integrity, someone could stay off-camera “signaling to the witness what to say or what not to say. And that goes to how much you trust your opposing counsel. Those are certainly things that attorneys think about. . . . Because you want the deposition to have integrity, the testimony to be accurate and truthful.”

Communicating with a witness via a text has been illegal for a long time, Stein said. As far as he knows, this and other unscrupulous actions — such as examining documents early in breach of an agreement — have not been happening more now that depositions have gone remote.

“We all work in small enough circles that you don’t want to engage in that type of thing because word gets out pretty quickly,” Stein said. “The cases come and go, but you’ll always have your reputation.”

Here to Stay?

Considering their prevalence these days, attorneys may wonder if remote depositions are here to stay, the way some expect telecommuting to become a permanent feature of our work lives. Stein doesn’t think so. Outside of small cases, or minor depositions, Stein expects almost everyone to return to in-person depositions as soon as the pandemic restrictions are lifted.

Remote depositions are convenient, and “obviously cost less because you eliminate substantial travel costs and things like that, but I would say they are very distant second,” Stein said. “I don’t see, in the future, people saying, ‘Should we do it by remote or should we do it in person? Let’s flip a coin.’ . . . There is no substitute for questioning witnesses live.”

Marandett thinks there will be a place for remote depositions going forward, perhaps for less important witnesses. 

“For key depositions, there is a strong preference to do it in person. I bet we move to a scenario where 75 to 80 percent are in person and the rest are remote.”

PLI offers additional programs and program segments related to remote trials, mediations, and depositions, including: Current Developments in Federal Civil Practice 2021; Remote Depositions: Practical Considerations and Best Practices for Taking and Defending Virtual Depositions; Securities Arbitration – Arbitration and Mediation Settlement Practicum; and Specialized Deposition Techniques 2020.