ABA Publishes Best Practices for Success in Remote Depositions

Remote depositions now are a fixture in modern litigation practice, a fact that has not gone unnoticed by the nation’s largest bar association. On Feb. 6, the American Bar Association’s House of Delegates approved the publication of six best practices for litigators to follow when conducting remote depositions.

A memo accompanying Resolution 505 Best Practices for Remote Depositions, from the ABA’s Section on Litigation, expressed the hope that the best practices document will help lawyers succeed for their clients during remote depositions.

“It will improve the profession and advance the rule of law by allowing effective use of remote depositions, which can be a valuable tool to save expense and avoid unnecessary inconvenience to lawyers, their clients, and all who participate in the deposition process,” the memo’s authors stated.

Six Best Practices Gained From Experience

The resolution sets out six remote-deposition best practices, based on existing court rules and lessons learned from remote depositions conducted during the past few years:

1. Know the rules. The resolution advised attorneys to become familiar with all of the laws or rules that might apply to a remote deposition. This means not only the laws of the forum but also those in jurisdictions where the deposition witness is located. Gray areas, or topics not addressed in existing laws, should be handled in a stipulated remote deposition protocol or court order.

One trouble spot flagged by the resolution is the mistaken assumption among some attorneys that a remote deposition is the same as a video deposition. A “remote deposition” merely indicates the method for taking the deposition; a video deposition is a different kind of deposition altogether.

“The procedural rules in federal and state courts generally require a party to provide prior notice if a deposition will be recorded on video for later use,” the resolution’s authors note. “An attorney seeking to record a deposition on video should ensure to consult the applicable rules, provide appropriate notice, and arrange for a certified videographer to ensure that the video will be admissible in any later hearing or trial.”

2. Understand and test the technology. Robust, quality communications technology is necessary for attorneys to effectively conduct or participate in remote depositions. The resolution advised attorneys to make sure they have on hand the necessary technology for a remote deposition and to test that technology in advance.

Significantly, the resolution’s authors placed this particular best practice in the context of an attorney’s ethical obligation of competence. In a footnote, they cited Comment 8 to ABA’s Model Rule of Professional Responsibility 1.1, which provides that in order “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

3. Prepare for the remote deposition as a remote deposition. Attorneys should recognize that a remote deposition will present unique logistical issues that may not be present in in-person depositions, so they should prepare accordingly.

4. Managing exhibits. In remote depositions, the need to provide the court reporter with deposition exhibits without unnecessarily ceding a strategic advantage to the opposing party has generated a fair amount of discussion among litigators, particularly in the context of complex, document-heavy cases. The resolution suggests one way to address the issue is to distribute the exhibits in a sealed envelope to the court reporter (or potentially to the court reporter, other counsel, and the witness) prior to the deposition with instructions that it be opened only when the deposition commences.

The resolution also mentions with approval the recent development of technologies that allow attorneys to upload and mark exhibits in real time during a remote deposition. Esquire Solutions’ eLitigate product, a user-friendly, purpose-built technology platform for conducting remote depositions, provides this functionality and others.

The resolution encourages attorneys to take the time to develop expertise with whatever remote deposition technology they will be using, take advantage of vendor-provided training, conduct test runs in advance of the deposition, and consider whether their case raises special legal issues that must be addressed. For example, if the remote deposition will involve the transmission of protected medical records, does the remote deposition service vendor’s technology platform provide adequate security to comply with the Health Insurance Portability and Accountability Act (HIPAA)?

5. Conducting and defending the deposition. The resolution urges attorneys to appreciate that remote depositions present unique challenges for both the questioner and the attorney defending the deposition. A remote deposition may take more time to conduct than a comparable in-person deposition. And the fact that all participants are not present in the same room together may raise concerns about coaching or other improper influences on the deponent. If these concerns are present, the resolution advises, then the attorneys should address them either through a stipulation; introductory, on-the-record statements; or both.

“Counsel defending a deposition should consider being present with the witness even if the attorney conducting the deposition attends remotely,” the resolution suggests.

Other best practices mentioned here include (a) ensuring that the remote conference platform provides satisfactory views of all deposition participants and (b) securing agreement, on the record, that the deponent will not communicate with anyone — by any means — during the deposition.

6. Anticipate the potential problems. The resolution offered suggestions for handling problems that have arisen in some remote depositions. For the most part, these suggestions distill the wisdom of the past several years of remote deposition practice.

• First, enter into a stipulation or obtain a court order addressing known trouble spots.
• Second, if possible, arrange for the court reporter to be in the same location as the deponent because this will create the best environment for an accurate transcript.
• Third, to help the court reporter capture and transcribe the record accurately, the attorneys should be more careful than usual not to speak over one another.
• Fourth, concerns that the deponent could be receiving undetectable communications from counsel or others during the deposition should be addressed in a stipulated remote deposition protocol or court order.
• Fifth, have a backup method for conducting the remote deposition — such as a conference call-in number — in case technology or connectivity hiccups occur.

Solid Starting Point for Remote Depositions

Beyond the publication of best practices, the resolution also contains valuable legal research and a form for remote deposition protocol that litigators can use as a starting point for drafting their own jurisdiction-specific remote deposition stipulations.

The resolution helpfully includes citations to many recent court rulings addressing legal issues that have cropped up during remote depositions. For example, court rulings in Alcorn v. City of Chicago, 336 F.R.D. 440 (N.D. Ill. 2020), and Newson v. Oakton Cmty. Coll., No. 19-2462 (N.D. Ill., Mar. 9, 2022), are reminders that attorneys risk the loss of valuable evidence or the imposition of sanctions — or even dismissal of their case — if they fail to abide by the rules applicable to remote depositions.

In Newson, counsel recorded a remote deposition on his cell phone without providing the notice required by Federal Rule 30(b)(3)(B). In Alcorn, an attorney used Zoom’s built-in recording function rather than hiring a certified videographer to take a video recording of the remote deposition.

“Both Alcorn and Newson highlight the traps in which some lawyers have been snared when attempting to treat remote, video depositions as simply run-of-the-mill exercises,” the resolution’s authors said.

Also included in the resolution are citations to cases involving attorneys misbehaving during remote depositions and the harsh consequences that often follow. Two such incidents resulted in professional discipline against the offending attorneys. In In re: Florida Bar v. James, 329 So. 3d 108 (Fla. Nov. 18, 2021), an attorney was caught providing answers to deposition questions via text message when he mistakenly sent the messages to opposing counsel instead.

In State Bar of Arizona v. Claridge, No. 20-2214 (Ariz. Jan. 21, 2022), an attorney was caught using the videoconferencing platform’s chat feature to send answers to the deponent during her cross-examination.

Nothing in Resolution 505 has the force of law, of course. The House of Delegates approved the publication of the best practices document as part of its mission to promote the highest standards of professional conduct and competence and to improve the system of justice.