For litigators, representing clients during the COVID-19 pandemic has meant developing the skill to effectively conduct a remote deposition. With few courts willing to wait for the day when in-person depositions could safely return, remote depositions — a somewhat novel discovery device in pre-pandemic times— became, out of necessity, the norm.
In a litigation environment in which only a small fraction of filed civil lawsuits go to trial, depositions, which are the foundation on which many case settlements are built, simply had to be conducted by any means necessary.
Today, hundreds of thousands of remote depositions have been successfully conducted. We’re fortunate that lawyers at some of the country’s best litigation firms have been generous in sharing their experiences and dispensing advice on how to thrive in a remote deposition. In a nutshell, the takeaways so far can be summarized as follows:
- Practice in advance with the same technology that will be used in the deposition.
- Address anticipated trouble spots in advance by stipulation or court order.
- Ensure that all parties have the technology to effectively participate in a remote deposition.
- Eliminate witness distractions and opportunities for outside influence.
The Voices of Experience
Here is a sampling of some of the best advice we’ve seen published online to date.
In Mastering the Virtual Deposition (PDF), an article written in early 2020, Baker McKenzie attorneys Aaron T. Goodman, Nick Kennedy, and Kyle Richard Olson predict that clients, once exposed to the cost savings in remote depositions, may become “more selective” when authorizing in-person depositions. Their article contains nearly two dozen tips for conducting a strong remote deposition.
Practice tip: “Perhaps the best solution for cases with voluminous documents or a number of depositions is to use a platform specifically designed for this precise purpose.”
In Five Tips for Conducting Remote Depositions, attorneys Mihai Vrasmasu and Vannessa Offutt, at Shook, Hardy & Bacon LLP in Miami, emphasize the need to eliminate outside influences that could creep into a remote deposition.
Practice tip: “Close your email, web browser, Microsoft Word, and any other programs you usually keep open. This will eliminate the chances of you inadvertently displaying to everyone your confidential e-mails, your deposition outline, or any other sensitive materials.”
Perkins Coie’s Checklist: Remote Deposition Preparation Plan (PDF) lists 11 bases that must be covered prior to any remote deposition.
Practice tip: “Practice with and rehearse the deposition using the available sandboxes administered by your attorneys or vendors.”
In 10 Recommended Tips for Remote Depositions, litigators at DLA Piper underline the need for litigators to effectively raise and preserve for review errors that can occur during a remote deposition.
Practice tip: “Discuss any special rules related to the remote deposition environment, such as making a verbal notation on the record if anyone enters the room unannounced, and to confirm that the witness and all participants commit to compliance with these rules.”
The employment litigation firm Littler Mendelson published Best Practices for Presenting Exhibits in a Remote Deposition, offering guidance on a practice point that has challenged many litigators: how to effectively use electronic exhibits and documents during a remote deposition.
Practice tip: “If you want to provide exhibits to opposing counsel prior to the deposition, but strategically you want to avoid allowing opposing counsel to know the identity or content of these intended exhibits, you can password-protect the files prior to delivering them to opposing counsel and the court reporter.”
In Tips for Preparing and Using Exhibits in Remote Video Depositions, litigator John E. Clabby of Carlton Fields, P.A., in Tampa, Fla., suggests giving opposing counsel most — but not all — documents to be used during a remote deposition. By withholding a key document until the deposition, counsel can get an authentic, unrehearsed response to the document.
Practice tip: “If your case budget supports it, have one person take the deposition and another, such as the paralegal who prepared the electronic potential exhibits, “drive” the electronic exhibit sharing and marking.”
Cravath, Swaine & Moore partners Wes Earnhardt, Scott Reents, and Matthias Thompson review important strategic considerations in the Practical Law publication Expert Q&A on Remote Depositions (PDF). Because remote depositions tend to run long, they advise practicing in advance, asking shorter questions, and possibly seeking longer time limits via stipulation or court order.
Practice tip: “Establish ahead of time with the witness an effective means of conferring during breaks (to the extent allowed in the relevant jurisdiction), agree that the witness will not speak until they leave the room in which they are testifying.”
In Navigating Remote Depositions: A Practitioner’s Guide, Baker Donelson litigators Jamie Ballinger, Thomas H. Barnard, Stuart R. Goldberg, Hal K. Litchford, and Peter Zuk unpack an extensive list of considerations to be weighed prior to, and during, a remote deposition.
Practice tip: “Request that chat functions be solely controlled by the court reporter and obtain an affirmation from the deponent that they will not communicate with anyone, in any form, during the deposition.”
Ashley Dixon, an attorney with business litigation firm Robinson Gray Robinson Gray Stepp & Laffitte in Columbia, S.C., reminds attorneys in COVID-19 and the New Remote Deposition: Tips for Success to be professional yet prepared to gracefully manage the unexpected in a remote deposition.
Practice tip: “If you notice a witness looking off screen or speaking to someone else in the room, address the situation head-on and have their counsel remind them of the rules.”
In If 90 Percent of Cases Settle, Make Your Virtual Deposition Count: Best Practices for Today and After COVID-19, attorneys Rich R. Maguire of Maguire Cardona P.C. and Christian J. Soller of Hodgson Russ LLP, both in Albany, N.Y., highlight the importance of remote deposition expertise in a litigation environment in which well over 90 percent of cases settle prior to trial.
Practice tip: Acquire a Wi-Fi extender to ensure consistent connections during virtual depositions and purchase an external microphone to improve audio quality when using a laptop computer.