Remote depositions permit litigants to advance discovery when the deposition participants are in separate locations. Litigants may conduct depositions remotely either by agreement or in accordance with a court order. Remote depositions, however, can present challenges to counsel taking and defending the deposition.
This article provides an overview of key considerations and best practices for remote depositions in civil actions, with references to the Federal Rules of Civil Procedure (FRCP). Counsel conducting remote depositions in state court should consult the corresponding state civil procedure rules.
What Is a Remote Deposition?
A remote deposition is one in which all participants are in different locations and appear by telephone or videoconference. The participants in a remote deposition are the same as those who attend an in-person deposition, including:
- The witness.
- The counsel taking the deposition.
- The counsel defending the witness at the deposition.
- The court reporter.
- An interpreter, if necessary.
- A videographer, if necessary.
- Co-counsel to either or both of the taking and defending counsel.
- Counsel for other parties to the litigation.
A fully remote deposition has historically been rare, but becomes more common due to extraordinary circumstances, such as the COVID-19 outbreak. In contrast, partially remote depositions have been more common during the normal course of a litigation. In a partially remote deposition, the witness, court reporter, deposing counsel, and defending counsel are generally together in one location while other participants, such as a party’s co-counsel, participate by telephone or videoconference.
What Are the Main Considerations for Choosing a Court Reporter for a Remote Deposition?
Many court reporting agencies offer solutions for facilitating remote depositions. Generally, these solutions have one or more of the following components:
- Videoconferencing to allow participants to see and hear one another.
- Exhibit sharing for the remote introduction, presentation, and review of exhibits.
- A live feed of the court reporter’s transcript.
- Remote video and audio recording of the witness.
Different agencies have different levels of experience and technical offerings, and counsel should inquire about an agency’s platform and capabilities before retaining the agency to conduct a remote deposition.
What Are the Options for Introducing and Sharing Exhibits at a Remote Deposition?
One of the most important technical considerations in a remote deposition is how counsel introduce and share exhibits. Counsel should weigh the advantages and disadvantages presented by the following three common ways that participants can handle exhibits in remote depositions:
- Pre-mark and circulate the exhibits before the deposition. This option is technologically simple, as counsel can send the exhibits by email as PDF attachments or by mail in hard copy. However, this option does not allow counsel to introduce new exhibits during the deposition and it can give the witness and defending counsel the advantage of knowing ahead of time the exhibits that deposing counsel may use.
- Use the “screen share” feature common to videoconferencing software to show exhibits during the deposition and then provide the exhibits to the court reporter following the deposition to enter into the record. This option gives counsel flexibility to show new exhibits and the witness and defending counsel do not have advance notice of the documents that deposing counsel may use. However, this option does not allow the witness and the defending counsel to review the documents independently on their own time and may require deposing counsel to page through the entire document on screen for the other participants.
- Use specialized exhibit sharing software that allows participants to upload, mark, and share exhibits during the deposition. This option gives counsel the flexibility to introduce exhibits on the fly and allows all participants to review the documents independently. However, this option requires use of a platform that may add costs to the deposition. It may also require practice in advance by the counsel taking the deposition to assure an organized and error-free presentation.
What Are the Key Considerations for the Technology Involved in Remote Depositions?
One of the main challenges of a remote deposition is that it relies on the technological capability of each participant, such as individual computers, microphones, webcams, and internet connections. A single participant’s poor connection or hardware can make it difficult for them to effectively participate, and can also create background noise that may interfere with the other participants’ ability to meaningfully participate and create a comprehensible record. This may be particularly true for a witness with access to lower quality equipment and internet connectivity. Frequent interruptions that require troubleshooting technical issues can frustrate and significantly interrupt the flow of the deposition.
Counsel can take steps to minimize the potential for technology problems that interfere with the remote deposition by:
- Agreeing with opposing counsel before the deposition on a minimum set of technical requirements for all participants, and potentially providing adequate equipment to the witness, if necessary.
- Ensuring that counsel and their team have appropriate equipment and internet connections to ensure the fidelity of the audio and video recordings.
- Requiring all participants to test the conference and exhibit platforms before the deposition and troubleshoot any issues with a participant’s configurations.
- Stipulating that participants take steps to avoid distractions during the deposition, including by being in a quiet location and minimizing third-party use of the same network to maximize bandwidth availability.
- Having an “operator” available during the deposition to address technical issues that will inevitably arise.
- Having a fallback option, such as a telephone bridge, if a planned technology fails.
Having an experienced legal team is the best way to prepare for your depositions. The Goosmann Law Trial team is backed by decades of experience in depositions, trial, litigation, arbitration, and mediation. Contact us today for your legal needs.