With the onset of Covid-19 and its accompanying changes to how we work, what do you do when it comes to taking and defending depositions? Many attorneys and their clients are reluctant to conduct in person depositions. As a result, video conferencing services, such as Zoom, Cisco Webex, and Skype, are now the new normal for remote depositions.
Preparing for and conducting a deposition when the deponent is not sitting in front of you presents its own set of logistical challenges. Where will the deponent appear? Where will the court reporter be? What if you also need an interpreter? Will the deposition be recorded? Try to work out as many of these logistics as you can with opposing counsel before you set your date, if possible.
Serving the Notice and Preparing for the Deposition
When you send your deposition notice, specify that the deposition is going to be conducted remotely via video. If possible, have the deposition notice indicate where each party will be located for the deposition. Oftentimes this is coordinated by the deposition officer, so check with your reporter in advance and see what their procedures are. For example, will each party appear via video conference, will breakout rooms be available, and confirm that the deposition will be recorded (do not assume it will just because it is via video). Also, discuss with the court reporter and opposing counsel how exhibits will be handled – will you email them a certain number of days in advance? Conversely, if you are requesting documents be produced the at the deposition, request that they produce them a few days before the deposition to give you an opportunity to review in case you want to use them during the deposition.
What about technical issues?
All the parties should be in a quiet area with sufficient lighting. Familiarize yourself with Zoom, or any other video-conferencing platform you are using. The middle of a deposition is not the time to discover that you have accidently shared your emails, your deposition outline, or a document you were drafting. Consider using a device other than your everyday computer, such as an iPad or a separate laptop, if possible. If not, make sure the only program running is the video-conferencing system you are using. If you and your client are not able to be in the same room for the deposition, conduct a trial run with your client, so they will be more comfortable with the new procedures. Depending upon internet connections and strength, a party may accidently be “kicked out” of the deposition. The party hosting the video conference, ideally the deposition officer, will allow them back in. Making sure that your client understands that technical glitches can happen and being patient will help them adjust to the remote deposition procedures.
Taking the deposition
In addition to instructing the deponent on the rules of the deposition, it is also advisable to inquire if anyone else is in the room and set some ground rules to avoid outside interference. Inquire of the deponent if they are the only person in the room. Ask the deponent to let you know if anyone else does come in the room during the deposition. Ask the deponent if they are using anything that you cannot see (such as a cell phone, other documents, notes, etc.) and then instruct them to not look at anything other than the exhibits or documents produced while you are on the record. Have the deponent agree to not communicate with anyone else besides you, including agreeing to not check email, text or use any other form of communication. Particularly because nervous witnesses tend to speak over the party asking questions, this is a time to emphasize how important it is to listen to the question and respond when the question is finished. This will allow for more time between speakers and give the court reporter time to adequately hear and record an accurate transcript.
With these tips in mind… Zoom off to your remote deposition!
By: Paula C. Clark, Esq.
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