In the March 19, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Time to Reconsider Remote Depositions in the Age of COVID-19”
Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.
As social distancing, travel limitations and working from home have become the norm due to the coronavirus (COVID-19), lawyers should give renewed consideration to conducting depositions by remote means. Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.
Federal Rule of Civil Procedure 30(b)(4) and similar state rules authorize remote depositions by stipulation of the parties or court order. Having conducted several depositions through remote means recently, including expert depositions, our firm attorneys believe the benefits of taking remote depositions far outweigh the perceived limitations.
To conduct a remote deposition under the federal or state rules merely requires the parties to stipulate they agree to do so. The stipulation should be in writing but need not be filed with the court or conditioned on court approval so long as the stipulation does not affect the terms of an existing scheduling order or other court order. Since the noticing party generally determines the location of the deposition, its counsel can raise the subject of taking its depositions remotely. Still, any counsel for a party or third-party witness is free to raise the issue. The subject of whether to conduct depositions remotely also should be an item for discussion at the Rule 26(f) conference. It should be addressed in the parties’ report on the conference submitted to the court.
If a party or other counsel refuses to cooperate in agreeing to conduct a deposition remotely on mutually agreeable ground rules, the requesting party can readily seek and obtain a court order for remote depositions. A California federal court, in granting a motion to take video depositions of two South Korean witnesses, found that leave to conduct depositions by telephone should be liberally granted and that a desire to save money constitutes good cause for granting a motion for remote depositions, see Carrico v. Samsung Electronics, Case No. 15-cv-02087 (N.D.Ca. Apr 1, 2016). The court cited to a number of other district courts which it stated, “have found that remote videoconference depositions can be an effective and efficient means of reducing costs.” Given the risk of infection presented by COVID-19, there is a compelling rationale for a finding of good cause by a court for taking depositions remotely if opposing counsel will not agree to do so without leave of court.
Once it is established that a deposition will be conducted remotely, it is important to put in place mutually agreeable, practical arrangements for conducting the remote deposition in an efficient and effective manner. For example, Rule 30(b)(5)(A) provides that unless the parties stipulate otherwise, the deposition “must be conducted before an officer appointed or designated under Rule 28.” The reference to “conducted before” implies the officer will be in the presence of the deponent. Having the court reporter who will administer the oath and keep the stenographic record of the deposition physically present with the deponent carries ancillary benefits to all participants in a deposition conducted remotely. Physical proximity to the deponent maximizes the ability of the court reporter to hear the witness, make an accurate written record, and provide professional and technical assistance if issues arise during the deposition.
Maria Damiani, CEO of Elite Legal Solutions, which has long provided remote deposition services, explains that “we are following closely the guidance of the Centers for Disease Control so that our reporters assigned to depositions are compliant and symptom free. We also are instructing our reporters to follow the six-foot rule, which means they will be positioning themselves a bit further away from the witness but still be able to make an accurate record.” In setting up a recent remote deposition, Elite arranged for its reporter to go to the home of the deponent, who was under medical advice to avoid travel and proximity to groups of people, so the deposition could proceed remotely on schedule.
It is not necessary that counsel for the witness be physically present with the witness, and we have found that counsel for witnesses will agree to not insist on being physically present. For counsel to participate remotely, all that is necessary is for everyone involved to connect to the deposition using Zoom or another free internet-based videoconferencing tool. The court reporter can bring a laptop with a web camera and microphone to the deposition site so that the deponent can be seen and heard by the other participants. Each participant can be seen by the deponent and the other participants by accepting an invite circulated by the court reporting service to join the Zoom videoconference when the remote deposition is ready to begin. Each participant can elect to participate by audio by either using computer audio or by calling into a toll-free telephone conference line.
At the beginning of the deposition, the court reporter or the questioner can describe the manner in which the remote deposition is being conducted and what a participant can do if he or she loses the video or audio connection to the deposition. Depending on the strength of the internet connection the image of a participant may freeze, but in our experience the audio quality has been consistently excellent. If a participant is speaking using computer audio, it is important to be sure and squarely face the laptop being used. Otherwise, the reporter and others may not hear the participant clearly. If a voice is disrupted, the court reporter or another participant unfailingly immediately raises the issue, which is solved by having the person turn directly to face the computer being used and restate the question or comment.
Some believe that remote depositions are most appropriate when the deposition is anticipated to be short and few exhibits will be involved. Based on our experience—our firm focuses on business litigation matters involving many exhibits, including lengthy financial records—even lengthy depositions with dozens of exhibits can be readily conducted remotely. An approach we have used successfully is to arrange for all potential exhibits to be placed in separate folders with numbered tabs, which are provided to the court reporter beforehand, then called up during the deposition by numbered tab, then marked with exhibit numbers.
To make the exhibits available to other counsel during the remote deposition, each new exhibit can be shared when it is marked by sending it to the other participants as a pdf attachment to an email. It is good practice to withhold questions about each exhibit until the questioner has confirmed on the record that the other participants have received the exhibit and that the document they have is identical in appearance and number of pages to the one marked for use with the witness. Of course, if counsel elects to participate together in the same conference room elsewhere, then hard copies of each exhibit can be distributed to those in attendance as they are marked.
Being physically present with a witness may still be the best way for the examiner to experience and evaluate a witness’ body language, tone or emotion. Taking a deposition with a witness in the same place as the examiner might even be necessary when the examiner believes the witness will be evasive. This is especially true when the evasive witness is coupled with opposing counsel who would likely engage in obstructionism during the deposition. With today’s technology, however, there is a little difference between in-person depositions and videoconference depositions, at least for evaluating and reacting to a witness’ demeanor. In the age of COVID-19, Damiani of Elite Legal Solutions believes “remote depositions may be the perfect way to go to protect yourself and others until this threat dies down.” We agree.
Edward T. Kang is the managing member of Kang Haggerty & Fetbroyt. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at firstname.lastname@example.org.
Reprinted with permission from the March 19, 2020 edition of “The Legal Intelligencer” © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.