Virtual Depositions During the Pandemic – 6 Tips for Attorneys

1. You cannot see non-participants in the room.  Depending on your level of comfort, any combination of these three steps can be used to ensure the Deponent is alone: a) add an opening question asking the Deponent under oath if they are alone in the room; b) ask the Deponent to pan their camera around the room; and c) ask the Deponent to sit with the door to the room they are in closed behind them.
2. You cannot see if the Deponent is referring to notes or other sources of information during the deposition.  With a virtual deposition, you cannot just make a copy of a Deponent’s notes.  Ask the Deponent if he is referring to anything during the deposition.  If they are, ask the deponent to show them to you on the screen and take a picture of it.  Alternatively, ask the Deponent to send you a copy by email or picture with their cell phone.  Be sure to tell the Deponent they are not to look anything up on their computer or review text messages or direct messages while in the deposition.  If they wish to speak with their attorney, they must do so using the breakout rooms discussed below.  Ensuring that the “chat” function is disabled for the Deponent will help prevent any impropriety by your opposing counsel.
3. No other attendee is in the same room as the Deponent.  One of the  primary concerns of remote depositions is the ability to meet and confer privately.  Court reporting services, however, have a solution.  In advance of the deposition, you can request that the court reporter set-up “breakout rooms”, which allow participants in the chat to virtually jump back and forth between the larger deposition meeting and a separate chat including only the participants from their side.  This allows clients to meet with their counsel privately as needed.  Reach out to your court reporter service prior to the deposition to speed along this process rather than at the start.  If you are taking the deposition, you should amend your instructions to explain this process.  Note that a participant that calls into the deposition by phone cannot join a breakout room.  Your court reporter service can help solve this problem by linking their phone to their video or, if they do not have video, sending them to a breakout room for them.  Be sure to handle this at the beginning of the deposition so you do not have a client’s video but not audio in your breakout room.
4. Deponents may not have the right technology or understand how to use the technology.  It is best to confirm with your client or opposing counsel that the Deponent has a computer or laptop with camera and audio capabilities for the deposition.  This is the preferred technology.  If the Deponent must use an app on their camera phone or tablet, it limits their view of the participants in the virtual space.  If a Deponent does not have audio capabilities, they can call in via their cell phone for sound.  Your court reporter service should offer training upon request.
5. Using exhibits requires planning.  The logistics behind getting exhibits out is not as easy as handling out pieces of paper.  Depending on your strategy, this can be handled in a few different ways: a) send them to opposing counsel and the court reporter prior to the deposition; b) send them out during the deposition to all participants using the “chat” function on Zoom; and/or c) share your screen with the exhibit already open.  If you share your screen, organize your exhibits beforehand.  The participants on the call will still be visible on your screen but will be much smaller.  Ensure that nothing else is open on your screen – so as to avoid inadvertent disclosure of your outline, privileged documents, emails, or personal matters.
6. Remind your client (and yourself) to dress for the occasion.  When clients (and even attorneys) are at home, they tend to forget that a deposition is not a casual event – especially if they are recorded and usable at trial.  Remind your attendees to dress properly from head to toe, as they may leave their seat during a break.

Remote depositions may never be as controlled as in-person depositions, but the above tips will go a long way to making sure your deposition goes as smoothly and securely as possible, so you can be confident the testimony you obtained is based on the Deponent’s own, independent recollection.

If you have any questions about the virtual depositions please reach out to Julianne M. Dailey or your HMB team member. For more information related to COVID-19, visit the HMB Resource Center for insights and resources designed to help businesses and individuals navigate pressing challenges related to the COVID-19 pandemic.