Recording Remote Depositions: What is Admissible?

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The assumption that videoconference depositions automatically include video is not uncommon. The videoconference software does allow for recording, it is true, but this recording is not automatic. Someone will need to push “record.” More to the point, this recording and the recording provided by a legal videographer are not the same. To assume that the remote recording and the videographer’s recording are redundant is a gross error.  In fact, there are several significant differences between the two, and you should weigh those differences when considering adding videography to your remote deposition!

The differences immediately apparent are not minor and could be dealbreakers for some. Breaks? The videographer notes the beginning and end times on the record. The remote recording does not. The remote recording does, however, record the breaks and off-the-record discussions. The videographer does not. The remote recording technically can be edited, but the time involved in editing the recording makes the process cost prohibitive. The videographer’s recording, on the other hand, better lends itself to the editing process, making for a more attractive price tag.

The most important difference between the remote recording and the videographer’s, however, is admissibility in court. It is unlikely the remote recording will be admitted at trial upon request. With a court reporter to certify only the transcript, and no certified videographer at the helm to ensure the recording followed proper protocol, the remote recording is not in compliance with Federal Rule 30. This has been a recurring theme when various courts have rejected requests to use remote recordings at trial.

Recently in Alcorn -v- City of Chicago, Judge Harjani denied the request to admit a remote deposition recording at trial, surmising the recording does not constitute admissible evidence. The court noted the distinction between a videoconference deposition and video-recorded deposition – the videoconference is a means of conducting a deposition, while the video recording preserves the deposition in a video format that could serve as a substitute for live testimony. In short, if the intention of a remote deposition is video of admissible testimony, a videographer must video record the deposition.

The videographer’s recording makes a powerful presentation at trial. The reporter’s verbatim transcript is a valuable tool when preparing for trial, but the video adds a heavy punch, capturing body language, intonation, facial expression, and the like. Legal videography has the capacity to make complex material comprehensible. Video can clearly demonstrate the veracity of a witness, through highlighted fidgeting, hesitation, lack of eye contact, and other telling behaviors. The videographer’s recording can be edited and synced to the transcript. This is formidable technology for trial purposes – the video record could be substituted for live testimony at trial if need be.

If the remote recording is most likely inadmissible, this doesn’t mean the recording is without value. You can still review the deponent’s body language with the Zoom recording. You can hear their tone, see their facial expressions, and other physical tells that you can’t read in the certified transcript. But if there is any chance you will need video for trial purposes, the verdict is in: you should schedule a videographer for the deposition.

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