No longer a remote possibility: best practices for remote depositions in 2020 and beyond

December 2020  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

December 2020 Issue

The COVID-19 global pandemic has changed the way we interact with each other. The world over, governmental authorities imposed travel restrictions and issued ‘stay at home’ directives. In New York, ‘patient zero’ was an attorney who practices in the populous Grand Central Terminal area in New York City. Within the initial months of the pandemic, several New York judges had succumbed to the disease and more than 100 court workers were infected, bringing home the gravity of the pandemic to the legal community. Courts, law firms and corporate clients across the country implemented their own remote working and social distancing measures to slow the disease’s spread.

After the initial shutdown of the US judicial system, it became apparent that the pandemic would not quickly abate and that for life, commerce and the judiciary to proceed safely, we would have to alter our customs and practices to accommodate this new normal of social distancing. As judges, lawyers and parties become accustomed to these changes, it is possible that some of these practices will outlive the pandemic. Among them are remote proceedings such as oral arguments before courts, mediations and depositions. This article discusses practical pointers to consider for remote depositions.

On 18 August 2020, the United States District Court for the Southern District of Florida issued an order In re Takata Airbag Products Liability Litigation concerning remote depositions, which serves as an excellent starting point for establishing a protocol for remote depositions. This article adopts and modifies the Takata court order to reflect the practicalities in remote depositions.

Remote depositions are permitted by the federal rules of civil procedure

Federal Rule of Civil Procedure (FRCP) 30(b)(4) authorises the taking of depositions by remote means. It provides: “4) By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.”

While depositions have been video recorded by court reporters for many years, it was unusual for the deposing and defending attorneys not to be in the room with the deponent. Depositions where counsel and the witness were separated were traditionally conducted only when the deponent was physically unavailable to counsel. Even then, the deponent would usually be in the same room with the videographer and the court reporter who administered the oath. However, in this new normal, it is frequently the case that all individuals involved in the deposition are each in their own separate space, including the court reporter. Since the onset of the pandemic, states have been revising their rules and issuing orders to permit the remote administration of a witness’s oath. Most, if not all, states now have such rules.

Preparing for remote depositions

For remote depositions, as with every deposition, counsel must be prepared to conduct or defend the deposition by reviewing documents, selecting exhibits and preparing witnesses. On top of these usual preparations, remote depositions require additional efforts. For example, counsel noticing the deposition should determine which entity will be hosting the platform for the deposition. Often, the court reporter or the videographer will have the capacity to host the deposition. Moreover, counsel must determine how exhibits will be handled. Will they be shared on-screen during the deposition? Will hard copies in sealed envelopes be sent to the witness to be opened during the deposition? What does the state in which the deponent sits say about whether and how the remote oaths are to be administered? Are there any logistical details that are not clear in a particular jurisdiction, which must be stipulated by counsel? All these details should be nailed down before counsel issues deposition notices.

Protocols for remote depositions

Below are suggested protocols for the taking and defending of remote depositions for cases pending in Federal court.

The deposition should comply with FRCP 30(b)(5), including being conducted by an officer appointed or designated under FRCP 28 unless the parties stipulate otherwise.

That officer must administer the oath or affirmation to the deponent remotely so that it has the same effect as an oath administered in person.

The platform should not be hosted by any of the parties or the witness but rather by the court reporter or videographer of the forum in which the proceeding is pending.

The court reporter should attend the deposition by the same remote means as the other participants and must be able to hear and communicate with and between other attendees.

The party noticing the deposition should arrange for the platform on which the remote deposition will be held and should provide all attendee instructions on participating in the video conference. The noticing party should work with the court reporter to conduct a test video conference to ensure that all counsel and the witness can connect.

The host should have adequate security measures to ensure the confidentiality of the remote deposition, including password protection and tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorised to attend the deposition. Security measures should also be in place for the documents which will be utilised during the deposition.

The parties should stipulate that they will not challenge the admissibility of the deposition merely because it was conducted remotely.

The platform should show in real-time a list of all participants.

Only the official videographer should record the deposition.

Only the witness’s counsel (if anyone) should be in the same physical location as the witness during the deposition. To ensure compliance, everyone at the deposition should join separately so they appear in the list of participants and can be seen on camera and heard on the microphones, if appropriate.

The videographer should only record the audio and video of the witness’s testimony, any documents being displayed or annotated for the witness during the deposition, and record the audio of the questioning and defending attorneys.

The videographer should only suspend recording during the deposition if the parties stipulate to such a suspension.

The video conference attendees should enable ‘do not disturb’ settings for applications not in use to avoid unnecessary interruptions of the deposition.

The only microphones and video that should remain on when the deposition is being recorded are those of the witness, the court reporter, and the attorneys taking and defending the deposition. Other remote attendees’ microphones should be muted.

The mechanism for transmitting possible exhibits should be determined before the deposition. Documents may be mailed in sealed envelopes in advance of the remote deposition to be opened only during the deposition, electronically transmitted through the remote deposition vendor’s platform, secure file transfer or email, before or during the course of the remote deposition, and in such other manner agreed to by the parties.

During the deposition, parties should consider establishing a rule that no one may speak to the witness on any device or in any fashion unless it is on a platform for all to hear or see. Counsel may consult with their clients during established breaks on the phone or in breakout rooms, but an advance stipulation that they will not send an email or text message to the witness between the questions and answer would be wise course.

When defending counsel prepares their witness for testimony, counsel should consider: (i) preparing the witness on the platform being used for the remote deposition; (ii) ensuring the witness is in a well-lit, indoor, quiet location without distractions on the walls or in the surrounding area; (iii) instructing the witness to face the camera being used to record the witness, with the camera at eye level (laptop computers and tablets should be raised); (iv) ensuring there is backlighting behind the computer or tablet being used (the light and camera face the same direction); (v) instructing the witness to dress in solid colours and avoid patterns; (vi) instructing the witness to maintain eye contact and look directly at the camera, or at least the questioning attorney’s image; (vii) instructing the witness to avoid looking at their self-view in the small frame in the corner of the screen (or turn off the self-image); (viii) ensuring no other application other than the platform required to conduct the deposition will be running on the witness’s device during the deposition (opposing counsel may request that the witness share their screen to ensure this is the case); and (ix) establishing an alternate method of reaching the witness (such as a cellular phone) is available in the event of technical difficulties.

Conclusion

Remote depositions may be here to stay for some time. The key to successfully conducting a remote deposition is being prepared not just for substance of taking and defending of the deposition, but also being prepared for the technological and logistical necessaries required to conduct such a deposition successfully.

 

Sandra D. Grannum and Tracey Salmon-Smith are partners and Jamie Helman is an associate at Faegre Drinker Biddle & Reath LLP. Ms Grannum can be contacted on +1 (973) 549 7015 or by email: sandra.grannum@faegredrinker.com. Ms Salmon-Smith can be contacted on +1 (973) 549 7038 or by email: tracey.salmonsmith@faegredrinker.com. Ms Helman can be contacted on +1 (973) 549 7016 or by email: jamie.helman@faegredrinker.com.

© Financier Worldwide

BY

Sandra D. Grannum, Tracey Salmon-Smith and Jamie Helman

Faegre Drinker Biddle & Reath LLP

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