Courts are closed. Law firm offices are empty. Clients, like most people in the United States, are working from—and stuck in—their homes. Yet, litigation, including the discovery process in which depositions play a central part, continues. Fortunately, there is technology that has been accepted by the courts and is used by litigators to effectively take, defend, and prepare witnesses for virtual depositions, even though the participants, including the deponent, court reporter, videographer, and attorneys, are in different jurisdictions and time zones around the world.
Acceptance of Remote Depositions
Remote depositions have been allowed by state and federal court procedural rules for a long time, either by party stipulation or court order. This has allowed lawyers to take and defend depositions over the phone or online, but with the court reporter and videographer, if hired, usually in the same room as the deponent. Fast forward to today, in the midst of the COVID-19 crisis, and we find that most states have very recently enacted rules that allow a notary public (the court reporter) to swear in a witness remotely, with the notary and deponent in different places. Parties can agree on remote oaths in states that don’t yet allow them. Consequently, litigants throughout the country are not only allowed, but in some jurisdictions encouraged, to move forward with depositions during this crisis while the physical courts and law firm offices are closed.
Challenges and Opportunities of Remote Depositions
We’re technologists, not litigators (although some of us have law degrees). Nevertheless, we listened to our litigator colleagues and clients and understand the challenges that might arise when depositions are remote:
- Technical hurdles, including feigned and actual connectivity and latency issues.
- Noise and physical disruptions in the background and foreground.
- Restricted observation of and rapport with the deponent, with no real eye contact or ability to monitor off-screen body language.
- Limitations on the timing, distribution, use, and mark-ups of exhibits.
- Fewer safeguards for bad actors, with an expected increase in undetectable witness coaching and reliance by the deponent on external resources.
- Overlapping conversations that affect the court reporter’s ability to memorialize the questions, objections, and testimony, and to slow the questioner’s rhythm and pace.
Yet, despite these very real challenges, many opportunities arise in a remote deposition environment. Remote depositions are:
- Easy to book: Most vendors allow a one-stop booking website offering single-click ordering of an entire suite of services, including court reporters, videographers, real-time transcript streaming, and remote deposition technology.
- Convenient: Gone are the days where flights, hotels, and the associated travel time are necessary to take and defend depositions in other locations.
- Momentum-building: Taking multiple depositions on successive days, or even on a single day, has been made easier, especially in cases where the deponents are located in different cities, states, or countries.
- Familiar to the legal profession: By now, most lawyers and business people are schooled in the use of a variety of remote conferencing technologies and types of equipment. So, too, are the court reporters who work with the vendors that offer remote deposition technology.
- Cost-effective: Although fees for stenographer output are largely unchanged, all other components of a remote deposition are less expensive, including videography, conference room rental, catering and shipping, travel, and attorney fees.
In addition, remote deposition technology makes it very easy to invite additional participants, including judges and arbitrators whose mid-deposition presence might assist in the resolution of deposition-related disputes.
Available Remote Deposition Technology
Although remote deposition technology has been around for a decade, remote depositions were previously uncommon, and it remains an emerging market with great disparity among vendor capability and services. That’s the bad news, but there’s good news, too. Almost all of the top remote deposition technology vendors base their offering on the save videoconferencing systems we’ve been using when working from home. Most use Zoom, a modern enterprise video communication solution with a fairly easy and reliable cloud platform that allows screen sharing and chat functionality. (We are aware of and address the reported security concerns with Zoom below). Whichever videoconferencing solution you end up choosing, you can supplement that solution with reliable real-time transcript streaming technology and, when appropriate, one of the handful of available exhibit management tools. When used together, this collection of technologies will create as close to an in-person deposition environment as technology will presently allow.
Vendor Selection Criteria
We recommend that each vendor selected for remote depositions meet these requirements:
- Intuitive, easy-to-use software, allowing the following:
- The questioner has total control over timing, distribution, and use of exhibits.
- All participants have access to complete copies of exhibits.
- Secure and private videoconference platform that satisfies the requirements of the user’s IT group.
- Dependable, experienced staff.
- Network of court reporters and videographers familiar with their technology.
- Real-time transcript streaming.
- Traditional videographer capabilities.
- Training for users and clients.
- A “sandbox” practice space that allows users to become comfortable and familiar with the technology before deploying it in an actual, on-the-record deposition.
Additional Zoom-Related Cautionary Advice
By now most people have heard the criticisms of Zoom, including its lack of advertised end-to-end encryption, ability to be hacked by “Zoom bombers,” and the fact that so-called “private” chats end up in the final host transcript (not the court reporter’s transcript) that is often distributed to all of the participants, including those not involved in the private chats. Without weighing in on the legitimacy of these comments, we encourage all users to insist that selected vendors perform the following functions to protect the security and privacy of the information, including testimony and exhibits, exchanged in a remote deposition:
- Implement encryption that meets the minimum requirements of the user’s IT group.
- Ensure all recordings are stored by the vendor and not on Zoom’s cloud.
- Provide a secure environment that only allows approved participants.
- Monitor the participants so that “deposition crashers” and bad actors can be identified and eliminated without any ability of reentry.
- Use waiting rooms, private passwords, and meeting-specific IDs.
- Allow for secure, unrecorded breakout rooms to which only selected participants have access.
- Disable the private chat function to reduce the risk of deponent coaching.
- Use a vendor-employed or law firm–supplied “technician” to troubleshoot technical issues and assist in the gatekeeping and expulsion functions described above.
Best Practices for Using Remote Deposition Technology
Through interviews with dozens of attorneys and vendors with experience in remote depositions, we’ve assembled a list of best practices, many of which are borne from deposition horror stories:
- Ensure that the attorney user and deponent have, and have tested, the requisite hardware, including a webcam, microphone, and laptop or tablet.
- Practice with the technology and rehearse exchanging, referring to, and marking up exhibits.
- Prepare the deponent using the same technology that will be used at the deposition, especially when someone else selected the technology.
- Ensure that the user and deponent surroundings are acceptable, including the lighting, background, and tangible items that will be visible both on-screen and off-screen if the deponent is asked to use his or her webcam to show what the room looks like.
- Consider configuring multiple displays so the real-time streaming and remote deposition platform are on different screens.
- Discuss the deposition with household members to eliminate physical and noise interruptions and disturbances.
- Maximize the integrity and speed of each internet connection:
- Hardwire the laptop or tablet, if possible.
- If a wi-fi router must be used, consider connecting to the 5 GHz option.
- Make sure others, including people streaming movies and playing videogames, disconnect from the wi-fi router.
- Exit all other computer applications so the remote deposition technology is the only application running.
- Adjust the pace of questioning to account for the latency that exists with almost all mobile conferencing software, recognizing that all audio and visual content will be delayed to some extent.
Take Advantage of This Opportunity
We are confident that, with enough practice, users will find the available remote deposition technology intuitive and easy to use. Preparation and rehearsals are key. Those who are comfortable with the technology and the uniqueness of a remote deposition setting will not only fit right into the new litigation normal, they will excel, and position themselves as thought leaders on the cutting edge of the remote litigation industry.