By Katherine Kayatta
In the last couple of weeks, nearly all in-person meetings have come to a grinding halt as the world hunkers down during the COVID-19 pandemic. Litigators, whose practices frequently require in-person contact at depositions, mediations and court proceedings, have scrambled to find a way to keep their cases on track.
As the public health crisis progresses, litigators will have to adapt to an increasing number of social distancing mandates. Traditional in-person depositions may simply not be feasible in the weeks (or even months) to come.
One way for litigators to avoid derailment of discovery is to transition depositions to videoconference. But unlike the videoconference meetings that many of us are familiar with, taking a deposition by videoconference requires advance planning of logistics and technology.
The following tips for videoconference depositions aim to keep your practice running smoothly while we weather COVID-19:
- Determine where the deponent will be physically located and how he or she will be connecting to the videoconference
At the moment, it may still be possible for some deponents to appear for deposition at a location that’s already equipped for videoconferencing, such as a law firm or court reporting agency office.
As COVID-19 progresses, however, deponents may face more travel restrictions or “shelter in place” orders, which could result in some deponents being confined to their homes. In that event, you’ll need to determine whether it’s necessary to delay the discovery, or press forward knowing that a deponent may have limited technology at home.
Regardless of where the deponent will be appearing, you’ll need to confirm how the deponent will be connecting to the videoconference. At a minimum, the deponent will need a web-equipped device with a microphone and camera, access to a videoconferencing platform or software, and a high-speed internet connection.
- Prepare for a situation in which your court reporter and deponent cannot be in the same location
You will get the most accurate transcript if the court reporter is physically present with the deponent, rather than with you or elsewhere. Given the increasing number of restrictions surrounding COVID-19, however, the court reporter may need to be in a location separate from the deponent.
If the court reporter cannot be physically present with the deponent, then he or she may need to participate by videoconference, as well. Some larger court reporting agencies have already begun to roll out plans for reporting remotely, although these logistics may change as the public health crisis continues.
In North Carolina, the court reporter does not need to be in the same physical location as the deponent, but by law the person administering the oath or affirmation does need to be in close physical proximity to the deponent. As of the time of this writing, the North Carolina Secretary of State’s office was working with Gov. Roy Cooper to craft an executive order to temporarily suspend this requirement. (For litigators COVID-19 changes everything)
- Decide how you will provide exhibits to the deponent, either in paper sent ahead of time, or electronically during the deposition
One reality of taking a deposition by video is that the attorney loses the ability to physically control documentary exhibits—you will not be handing a deponent any paper.
There are two ways to tackle exhibits during a video deposition. First, you can send exhibits to the deponent’s location in advance of the deposition. This could mean sending documents to the deponent’s counsel, a court reporting agency, or directly to the deponent. The downside to sending exhibits in advance is that it allows the deponent and his or her counsel the opportunity to review the documents in advance.
To solve this dilemma, consider using electronic exhibits in real time during the deposition. Many court reporting agencies offering videoconferencing capabilities have software allowing for the real-time display of electronic documents during a deposition.
Many videoconferencing programs also have a “screen-share” feature, in which you can pull up a document on your own screen and it will display to the deponent and counsel on their laptop or tablet during the deposition.
Displaying exhibits electronically allows you to confront a deponent with a document at the time of your choosing. One potential pitfall with this method, however, is that if your technology fails, your deponent will not have any paper documents on which to fall back.
You’ll need to weigh the pros and cons of both options and decide what works best in your case.
- Conduct a test of technology at least one day prior to the deposition
At least one day before the scheduled deposition, conduct a test of all technology that will be used in your videoconference.
If your firm has an internal IT department, ask someone to participate and work with the court reporting agency or whoever is on the other end to ensure the connection operates smoothly.
If the deponent will be physically located in another law firm or court reporting agency office, you or your IT department will communicate with their personnel to establish the video connection.
If the deponent will be located in a remote location, such as a hotel conference room or a home, testing becomes all the more important. You want to avoid finding out at the last second that the hotel Wi-Fi isn’t working or is too slow, or that nobody present with the deponent knows how to connect or troubleshoot the video connection.
- Assess how attorneys in multiple locations will connect to the videoconference
What if your case involves multiple parties with counsel in varying locations? Again, planning is key. Discuss your needs with your firm’s IT department and the court reporting agency.
It’s possible to have everyone connect virtually, but you will need to consider another layer of logistics. Many platforms will permit you to connect multiple locations to a single conference. You can be in Location A, the deponent in Location B, the deponent’s counsel in Location C, and perhaps another attorney in Location D.
For multi-party cases or cases involving many attorneys, you can consider using Zoom or another platform to connect all counsel on one end, and then have a single connection from that end to the deponent’s end.
- Decide if you want to videotape the deposition
Taking a deposition by videoconference is not the same thing as recording a deposition by video. If you want the deponent to be recorded so that his or her testimony is memorialized on video, make sure to comply with local rules for noticing the deposition.
As with the court reporter, the best quality video will result when the videographer is physically present with the deponent (rather than recording the deponent remotely on a screen), but that may not be possible in light of concerns about COVID-19.
Many videoconferencing platforms offer the capability to record and save the videoconference feed. If you elect this option, be sure to do a test run to check that both audio and video are being captured and recorded. Make sure the lighting and camera are of sufficient quality to capture a clear and sharp image and that the internet connection is sufficiently fast to allow for high-resolution recording. In other words, you are the videographer, so you’ll need to take on this extra task when the videoconferencing feed is the sole method of recording.
Best practice is to obtain leave of court or at least a stipulation of counsel in advance for using the videoconference feed as your audio-visual recording, and then make sure to put that stipulation on the record.
- Know your backup plan
Go into your deposition knowing how you will handle a technology failure. Will you proceed telephonically? Will you reschedule if the video connection cannot be established or suspend if your technology fails mid-deposition? Will you be able to get the deponent back another time?
If you’ve tested your connection in advance, it’s unlikely you will encounter a technology problem that cannot be quickly resolved, although having a backup plan will save you from making a snap decision without thinking through potential consequences to your case.
To sum up, it is possible to proceed with scheduled depositions by moving them to videoconference instead of in-person or by telephone. Advance planning and testing will dictate how smoothly your deposition runs. As evidence suggests we will be grappling with limiting in-person contact for some time, videoconferencing is a great tool to enable cases to proceed through discovery.
Pierce Atwood partner Katherine Kayatta is a litigator with trial experience in state and federal courts in Maine and Massachusetts. She focuses her practice on complex commercial litigation and class action defense.