Remote Depositions: New Rules of the Road

As of March 2020, the litigation landscape could not have been more deposition-centric, and the vast majority of depositions were taking place in person. According to a survey by Veritext Legal Solutions, 87% of litigators said they either never or rarely ever participated in remote depositions if given the option. It was this landscape onto which COVID-19 landed – and changed everything. Gone, with staggering speed, were the days of looking our opponents in the whites of their eyes. Suddenly, the most important event in litigation had to be reimagined, and the courts quickly made clear that parties would not be allowed to wait for things to get back to normal before moving cases into and through the deposition phase. See, e.g. Ogilvie v. Thrifty Payless, 2020 U.S. Dist. LEXIS 83620, at *6 (W.D. Wash. May 12, 2020); United States ex rel. Chen v. K.O.O. Constr., Inc., 2020 U.S. Dist. LEXIS 81866, at *3-4 (S.D. Cal. May 8, 2020) (“it is not feasible for a court to extend deposition deadlines because no one knows when that will occur, and there are alternatives, e.g. remote depositions”).

Forced to do so, lawyers adapted quickly. An estimated 90% of depositions were held remotely in the early days of the pandemic according to a study by PwC’s Strategy& and Verbit. In the months that have followed, the prevalence of remote depositions has fluctuated along with lawyer, law firm, court, and government opinions and regulations about COVID-19. Lessons related to the conduct of remote depositions have been learned, and remote deposition protocols have been tested. Through the trial and error process, we have experienced first-hand the unique challenges presented by remote depositions. Technology is more important than ever because technology failures are now truly fatal, and given the multitude of users connecting remotely to any given deposition, the opportunity for those failures is exponentially higher. Relatedly, the nuances presented by the various remote platforms, along with user error and general discomfort with the technology, can make it more difficult to achieve one of our primary deposition goals, i.e. creating a clear and usable record. On the subject of general discomfort, many lawyers are skeptical about deposition integrity when they are not in the room with the witness, particularly when a defending lawyer is. Taken together, these challenges, among others not highlighted here, may elicit objections to the format or conduct of the deposition, potentially rendering the entire process pointless, or leading to costly motion practice.

To avoid this fate, lawyers have to agree on remote deposition protocols intended to guarantee deposition integrity, mitigate against technology failures, and eliminate needless objections. To be sure, there are additional issues to consider when agreeing to remote deposition protocols, but we suggest that certain protocols have emerged as the most useful for addressing these specific challenges.

1. Minimum Technical Requirements

Excluding the equipment used by the court reporter and videographer, only three pieces of hardware are necessary for a successful remote video deposition:

a) Electronic Device, e.g., computer or tablet;

b) Webcam; and

c) Microphone.

As with many things, however, the issue is quality. Nobody benefits if the deposition is delayed or postponed because of technical issues. Similarly, it is important to avoid any possibility that your opposing counsel can object to the manner of the deposition based on the quality or performance of the equipment. Accordingly, make sure to reach a written stipulation in advance of the deposition about the sufficiency of the equipment all parties will be using during the deposition. This includes a stipulation about the technical requirements of all computers, webcams, and microphones, as well as minimum internet connections speeds (10 Megabits per second (“Mbps”) for downloads and 5 Mbps for uploads). Finally, any technical requirement stipulation must guarantee that all participants to the deposition have the equipment. Thus, the stipulation should include language to the effect that for any witness noticed for a remote deposition who does not have the agreed upon technology, counsel who noticed the deposition must provide the deponent with the requisite equipment and internet access.

2. Equipment Testing

Every lawyer thrown into the world of remote video platforms in the past 18 months has experienced technical difficulties. The best way to avoid these is to practice with the technology well in advance. Remote deposition protocols should dictate that at least 24 hours before the remote deposition is scheduled to begin, counsel, the witness, and the remote deposition vendor must conduct a test of the system, equipment, and internet connection that will be used to conduct the remote deposition. This includes running an internet speed test.

3. Video Record

Wherever possible, continued use of a separate videographer to video record the deposition, in addition to the video-conferencing platform, is recommended. In every case, however, the parties must agree which video recording will be the official video record for use at trial and stipulate to that in the remote deposition protocols.

4. Technical Issues During Deposition

Even the most prepared and practiced remote deposition can be derailed by technical issues. Stipulate that any pauses, lags or disruptions in technology, including but not limited to interruptions in internet connection, will not result in waiver of objections by any party. Also stipulate that if any pauses, lags or disruptions occur, the resulting time lost, or the time spent resolving the issue, does not count against the allotted deposition time.

5. Remote Oath

Fed. R. Civ. P. 30(b)(5) requires that, “[u]nless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28,” and that officer must administer the oath or affirmation to the deponent. Thus, it is imperative to include a stipulation that: (a) the remote deposition will be deemed to have been taken before an appropriate officer despite the court reporter not being in the same physical location as the witness, and (b) the witness may be sworn in remotely with the same effect as an oath administered in person.

6. On Record Stipulations

Possibly the most important stipulations to include in a remote deposition agreement are those that waive the right to object based solely on the fact that a deposition was taken and recorded remotely. All parties must agree in writing that they will stipulate on the record at the commencement of the deposition:

a) their consent to this manner of deposition;

b) their waiver of any objection to this manner of deposition, including any objection to the admissibility at trial of this testimony based on this manner of deposition; and

c) that despite the fact that this deposition is being conducted remotely, the appropriate state or federal rules relating to objections during depositions, including waiver of objections not promptly made on the record, still apply in this deposition.

7. Exhibits

As remote depositions have become the rule, lawyers have developed innumerable ways to accomplish their varying goals regarding presentation of deposition exhibits. Assuming that the court reporter is not going to be physically present with the witness, the method we have found to be most useful is a hybrid approach where the witness, counsel and the court reporter are provided with hard copies of potential deposition exhibits while, at the same time, the remote platform allows documents to be displayed and annotated electronically. The additional question of when to allow defending counsel and the witness to access and review the potential exhibits will depend on the case, but that should also be articulated in the exhibit protocol, e.g. “Questioning Attorney will arrange to have delivered to Witness, Defending Attorney, and Court Reporter copies of any potential deposition exhibits. The parties agree that the packages containing the potential deposition exhibits will remain sealed until Questioning Attorney instructs Witness to open the package.”

Finally, it is important to leave room for the possibility that an important document did not make it into the potential exhibit package, either because it was mistakenly excluded or because questioning revealed the need for additional documents. Thus, any exhibit protocol should state that a questioning attorney will not be precluded from electronically marking and introducing an exhibit during examination on the basis that the exhibit was not provided in advance to the witness or counsel in hard copy, provided that the defending lawyer and the witness can view the entire exhibit (including all pages of a document from which the exhibit came) during the deposition.

8. Deposition Integrity

Deposition integrity, i.e. making sure the witness is not communicating or being coached off camera, is a concern unique to remote video depositions, where questioning counsel is not present with the witness to ensure that all answers are derived only from the witness’ own recollection. There is much debate about the extent to which precautions must be taken to ensure deposition integrity. We recommend the following:

a) a stipulation by the parties that, while on the record, the witness will power down all devices not being used for the deposition;

b) a stipulation by the witness, on the record at the commencement of the deposition, that:

o the witness will not communicate in any way with anyone not on the record during the deposition

o the witness will not email, chat online, or text during the deposition

o if anyone attempts to communicate with the witness, the witness will immediately notify all parties

o to the extent possible, the witness will not read any communication that anyone attempts to send to them;

c) if the witness is alone in the room, have the witness confirm on the record that there is nobody else in the room and agree that if anyone enters the room, the witness will notify all participants immediately (if desired, the parties might also agree to have all witnesses pan the camera around the room to confirm the witness is alone);

d) a stipulation that if anyone other than the witness is physically present in the room, they must identify themselves at the commencement of the deposition on camera.

NOTE: There is some disagreement about whether to require an individual who is physically present with the witness to remain on camera for the entirety of the deposition. Our experience is that this position, when unsupported by specific reasons it might be necessary to do so, can lead to unnecessary argument at the deposition. Consider doing this only if there is good cause for doing so.

As noted previously, there are many additional details to include in a remote deposition agreement, some of which will be case specific, but these have consistently been the most important to a smooth and predictable deposition, and to a clear and usable deposition record.

Notably, the 87% of lawyers in the Veritext poll who said that, pre-pandemic, they would never voluntarily take a remote deposition, have changed their tune. Those same attorneys, who were forced to take remote depositions during the pandemic, were asked if they would continue with remote depositions once COVID-19 was no longer a concern. 57% responded that they would do so often, very often, or all the time, and 26% said they would do so at least occasionally. Only 4% said they would go back to exclusively live depositions.

It appears, for now at least, that remote depositions are here to stay. Even if you count yourself among the 4% of lawyers who prefer returning to the traditional method, your opponent is statistically more likely to disagree, and courts have demonstrated they will support remote deposition requests. But we have found that with the right preparation and protocols, lawyers can achieve their deposition goals just as easily, and sometimes more easily, in a remote deposition. Have your rules of the road prepared in advance in order to avoid the most common remote deposition pitfalls, and to ensure that format alone does not interfere with your deposition goals.

For an example of a complete Proposed Order Regarding Remote Depositions, please visit www.markowitzherbold.com/Proposed-Order-Regarding-Remote-Depositions.

This article was originally published in the Fall 2021 edition of the Oregon State Bar's Litigation Journal.