With the outbreak of the novel coronavirus (COVID-19), lawyers must reconsider the logistics of various proceedings that normally occur in person. Stay-at-home orders have shuttered courthouses and workplaces, and travel may be prohibited or at least undesirable. Social distancing has become a legal and public health imperative.
During this time, one way for lawyers to avoid disruption in discovery is to begin conducting depositions by remote means. This allows the deposition to proceed even though the witness(es), participating counsel, and other necessary individuals are not in the same room.
Federal and State Law on Remote Depositions
Pursuant to Federal Rule of Civil Procedure 30(b)(4), the parties “may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” Under the rule, “remote means” can be either audio, audiovisual, or stenographic.
Similar state rules authorize the use of remote depositions by stipulation or court order. For example, Colorado Rule of Civil Procedure 30(b)(7) allows parties to “stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means.” Under the rule, the stipulation or court order “shall include the manner of recording.”
One of the biggest hurdles lawyers face when conducting remote depositions is involving court reporters to capture testimony. Both Federal Rule of Civil Procedure 30(b)(5)(A) and Colorado Rule of Civil Procedure 30(b)(4) state that, unless the parties stipulate otherwise, the parties must conduct depositions “before an officer appointed or designated” pursuant to Rule 28. The stipulation exception in these rules provides flexibility. It not only allows the parties to agree to the officer’s remote participation, but also allows them to agree that remote video depositions be conducted by a person who is not a notary. For such a stipulation, neither the federal rules nor the Colorado rules require court approval; however, parties should always consult local rules to see if courts or judges have other preferences or requirements.
Recently, several state supreme courts have issued emergency orders that relax requirements of in-person proceedings. For example, by Executive Order, dated March 27, 2020, Colorado Governor Polis has temporarily authorized the use of real-time audio-visual communication to carry out notarizations, subject to consent rights of parties. In response, on March 30, 2020, the Colorado Secretary of State issued detailed temporary guidelines and rules to implement the Governor’s authorization. Among them, the notary must be currently commissioned, and both the notary and signer must be physically located in Colorado; the process must be recorded and stored for 10 years; the notary’s certificate must indicate that the notarial act was performed using audio-video technology; and the remote notarization system used must “be sufficient to enable the notary public to verify the identity of the remotely located individual . . . and that [each participant is] viewing the same record.”
COVID-19 poses real challenges to the ability to conduct in-person depositions: An important witness may be in self-quarantine; another may be a member of an at-risk population, such as nursing home residents; or, perhaps, the individual lives in a major city with travel restrictions, such as New York or San Francisco.
Of course, being physically present with a witness is still the best way for an examiner to experience and evaluate body language, tone, and emotion. Because of this, counsel should aim to incorporate video where possible, and limit the use of phone conferences for remote depositions. A video can be especially important if a witness is particularly evasive or hostile—a problem that emphasizes the need for selecting high-definition technology that allows the parties to see facial expressions and body language.
If the parties choose to proceed remotely, it is important that they establish mutually agreed-upon, realistic plans for the deposition. For example, parties may need to agree to amend any deposition notices sent prior to the COVID-19 outbreak to include the possibility of remote audio-video. The parties should also discuss technology choices, audio and video quality standards, and how to proceed if technology fails. Other special considerations include the use of court reporters, document sharing, and resource sharing.
1. Court Reporting
A deposition transcript will benefit from accuracy if the court reporter and deponent are in the same room. With restrictions surrounding COVID-19, however, this may not be possible. If local rules require the deponent and court reporter to be in the same room, parties should consider stipulating on the record that all parties waive this requirement, or should seek leave of court.
If the parties have stipulated to the remote participation of the court reporter, for example, that person will need to participate by videoconference, administering the oath and keeping the stenographic record remotely. Some online legal platforms, such as Veritext and Esquire Deposition Solutions, have begun to issue programs for reporting remotely. These platforms provide certified stenographers who have been trained in remote reporting, thus eliminating the need for any of the deposition attendees to be physically present in the same room. Along with swearing-in the witness, marking exhibits, and performing read-backs, the remote court reporters also provide transcripts in real-time, so attorneys can refer to the transcript during the testimony.
2. Document Sharing
Apart from the in-person requirements for court reporters, remote examining also poses challenges for document sharing. In a remote deposition, the parties have a few options. The first is to send physical exhibits to the deponent’s location in advance. The risk here is obvious, as it provides an adverse witness an opportunity to review documents prior to the deposition. Another option is to embrace electronic exhibits. During the deposition, a party can share each new document as it is marked by sending it to other participants as a PDF attached to an email. This may be necessary if the parties are using a free, Internet-based audio-visual platform, such as Zoom or Google Hangouts, which allows for conferencing but does not always permit exhibit and document sharing in real-time. During a Zoom conference or another web-based videoconferencing tool, all that is necessary is that everyone involved be connected to the deposition. The court reporter can circulate an invite to each participant to join the Zoom videoconference when the remote deposition is ready to begin. Each participant can see the deponent and choose to participate either by computer or by calling into a toll-free telephone conference line.
Free internet-based tools, such as Zoom, pose limitations for remote depositions. With Zoom, the connection is not as secure as a private share sent over an encrypted site, and, if using the free version, parties must send exhibits in advance. Certain subscription levels and tools will permit parties to load documents in a chat screen, but those documents will remain accessible to the witness after the deposition concludes. For these reasons, parties should consider investing in professional deposition-specific tools. While these come with increased costs, they offer the easiest and most secure way to connect and share exhibits. These platforms often also include computer technicians and IT support.
For example, professional services allow parties to introduce exhibits electronically from a secure and private exhibit share during videoconferencing. Such programs have built-in solutions for presenting, submitting, marking, and downloading exhibits. These services allow parties to upload multiple exhibits simply by dragging and dropping files into a secure space. These systems also give examining attorneys full control over their exhibits, allowing them to send documents in real-time instead of providing them in advance.
3. Resource Sharing
Normally, the party noticing the deposition should make arrangements for other parties, including the court reporter, to participate in the deposition. To access platforms such as Veritext, parties do not need to download or install software. All they need is a secure, encrypted web connection through their web browser. As with Zoom conferencing, the court reporter provided by Veritext will send an invitation to participants and a link to the deposition. Using a professional web-based tool eliminates the need for both sides to the litigation to purchase and download software. For services such as Veritext, most programs offer a pay-per-deposition rather than subscription-based price plan. Expenses can be allocated properly to each party.
While COVID-19 continues to loom, and interstate and face-to-face interviews are limited, attorneys might also recalculate which witnesses they need to depose and how many should be deposed. They should also strive to test their technology before the deposition and to plan for backups and troubleshooting if it fails. Finally, with any technology that depends on an internet connection, there is always a risk of security and data breaches. To mitigate this risk, the parties should consider choosing a business-class videoconferencing service that does not depend on free or slower internet connections.
For the foreseeable future, attorneys and parties will be required to limit in-person contact. With planning, communication, and testing, however, it is possible to move forward with a scheduled deposition and proceed through discovery by transitioning to videoconference platforms.