As a result of the COVID-19 pandemic, fully remote depositions have become necessary and employment lawyers are quickly adjusting. Below are some areas to consider when taking a remote deposition.
Court reporting services use various audio-video technologies, including Zoom, Cisco Webex, and other platforms, to connect participants in a remote deposition. Being comfortable on a platform may depend on prior experience. Verify the security to ensure there are no surprise “crashers” in a deposition. Whatever the format, a web-camera and possibly a microphone may be needed. Many computers have built-in webcams and microphones. Some court reporters advise connecting to the audio feed by telephone, rather than computer audio, to avoid disturbances by internet bandwidth issues.
Deposition Notice, Stipulations
Consider including language in the notice of deposition stating the deposition will be conducted remotely with the deponent, parties, attorneys, and court reporter participating from different locations. The notice should advise that the court reporter will administer the witness’s oath remotely. Email in advance to all participants the link to connect and any other information they needed to join the deposition. Provide to all parties the contact information of the court reporting service and advise them to test their connection in advance, and suggest that they may contact the reporter to do a test session. Some court reporting services can provide a template remote deposition notice. Also, consider formal written stipulations of the ground rules for handling exhibits and related concerns that can arise on or off the screen.
Showing exhibits to the deponent is the most unique element of a remote deposition, and needs extensive planning. There are many ways to handle exhibits and the method you choose will depend on whether the element of surprise regarding which exhibits you will show the witness is important, how many exhibits you intend to use, and how proficient you are with technology.
If appropriate, one can share exhibits in advance with the deponent and opposing counsel. Exhibits can be marked and shared in advance with the deponent, counsel, and court reporter. You simply can instruct the deponent, on the record, to refer to hard copy exhibits already in their possession and proceed to question the witness.
If you do not want to share exhibits in advance, there are two methods to show exhibits using technology. One is to mark exhibits in advance, scan and save them on your computer, and share your screen through the video platform employed by the court reporter. When you want to show an exhibit to the deponent, you share your screen with the participants and display the document on your screen. All participants will see on their screens exactly what is displayed on your screen. Alternatively, counsel can use an exhibit-sharing platform that many court reporting agencies are using. Many exhibit-sharing programs automatically affix exhibits with electronic exhibit stickers and allow a witness and counsel to electronically “mark up” an exhibit, as may be done during an in-person deposition with a physical pen or marker. In addition, each participant can independently scroll through the document at their pace; the deposing attorney does not need to scroll down to show the deponent subsequent pages of an exhibit, as is necessary when employing the share-your-screen method.
Finally, if you are not comfortable sharing your screen or using an exhibit-sharing technology, but you do not want to tip your hand on which documents you will utilize, you can provide hard copy exhibits to the deponent, court reporter, and opposing counsel in advance in a sealed package, with explicit instructions that: (1) the package may not be opened prior to the deposition; and (2) the parties will be instructed to break the seal and open the package for the first time on camera and on record during the deposition.
While a fully remote deposition likely will be a new experience for most attorneys, if you are prepared, the deposition should run smoothly.