If you’ve ever wondered whether it’s possible to create a “video deposition” merely by recording a Zoom call, you’re not alone. After all, the litigators and witnesses, and the court reporter, are present, their voices and images transmitted – reliably, it appears – across the Internet to each other. The technology to make a video recording is, literally, right at everyone’s fingertips.
It seems like a technological door that a savvy litigator should be able to walk through.
But the question is not whether creating a “video deposition” in this manner is possible. It is, of course. The right question is whether Zoom (or another handy screen-recording technology) can yield video evidence reliable enough for use in court. The answer to that question, according to the Federal Rules of Civil Procedure, is no.
That’s because the authors of the federal rules have long recognized the possibility that attorneys and other deposition participants can make their own deposition recordings. Rule 30(a)(B)(4) provides that deposition testimony may be taken “by telephone or other remote means.” Rule 30(a)(3)(A) provides that “testimony may be recorded by audio, audiovisual, or stenographic means.” Technology-wise, the federal rules are up-to-date.
The Limitations of Home-Grown Recordings
Litigators seeking to use Zoom-recorded video in court proceedings face several law-related barriers as well as practical considerations disfavoring their use. They include:
The court reporter will not be able to certify that the video recording accurately records the witness’s testimony.
Rule 30(f)(1) states in part: “The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness’s testimony. The certificate must accompany the record of the deposition.” During a deposition, the court reporter is engaged in making an accurate stenographic recording of the deposition. He or she is not monitoring the accuracy of any video recordings that might be created during the call.
Remote depositions recorded by a legal videographer will have the necessary certifications. Legal videographers monitor the quality of the video and audio recording as they are being made. They monitor – and note for the record – breaks in the recording, and they certify that the recording they deliver to counsel is an accurate depiction of the deposition witness’s appearance and testimony.
The court reporter will not be able to certify that the video recording has not been tampered with.
Rule 30(f)(1) further provides that the court reporter must “seal the deposition in an envelope or package” and send it to the requesting attorney who must, in turn, “store it under conditions that will protect it against loss, destruction, tampering, or deterioration.”
It will not be possible for the court reporter to provide assurances that a video recording made by an attorney or other third party has not been tampered with or modified in some fashion. Most screen-recording software produces video recordings in formats that are editable by persons with little technical knowledge.
Attorneys conducting the deposition are not “officers” authorized to record deposition testimony.
Federal Rule 28 defines a limited class of individuals who may capture deposition testimony. When a deposition is conducted within the United States, the deposition must be taken before “an officer authorized to administer oaths either by federal law or by the law in the place of examination” or “a person appointed by the court where the action is pending to administer oaths and take testimony.”
Clearly, attorneys participating in the deposition itself do not qualify as officers before whom a deposition may be taken. Remote depositions recorded by legal videographers, on the other hand, will conform to all federal and state court rules governing “officers” authorized to administer the oath.
The deposition notice likely did not indicate that a video recording of the deposition would be made.
Rule 30(a)(3)(A) provides that the party noticing the deposition “must state in the notice the method for recording the testimony.”
Host-recorded video of Zoom depositions can be expected to draw an objection for reasons relating to the accuracy of the recording and chain-of-custody issues arising from the fact that the recording was created and controlled by one party in the litigation. The fact that a video recording would be made by the Zoom host – or some other individual – is likely not going to be disclosed in the notice of deposition, as required by Rule 30(a)(3)(A). Nor would counsel’s intent to use the video recording at trial likely be included in the deposition notice.
Video recordings of Zoom calls may violate federal and state electronic eavesdropping laws.
Recording a Zoom call is arguably lawful under the federal Electronic Communications Privacy Act, which only requires explicit or implied consent of at least one party to the call. However, some states are “two party consent” states (California and Florida, for example). In these jurisdictions, every party to the Zoom call must give consent to the recording.
Remote depositions, when properly noticed and recorded by a legal videographer, will never violate electronic eavesdropping laws because the proceedings are transparent to everyone involved and consent to recording – if necessary –will have been obtained.
Video recordings of Zoom calls are low-quality, distracting, and unsuitable for trial purposes.
In Alcorn v. City of Chicago, No. 17-cv-5859 (N.D. Ill., Aug. 20, 2020), the court categorically rejected one party’s attempt to record a Zoom call and introduce the resulting video at trial. The court stated:
Nothing in Rule 30 allows a party to engage in a secondary recording or transcription of a deposition, and treat that recording as the equivalent of a certified deposition. Taking it to its logical conclusion, under Plaintiff’s proposal, counsel could whip out an iPhone at an in-person deposition, video record the deposition, and claim that that the recording is the equivalent of the certified transcript prepared by the court reporter. The opposing party may then choose to do the same, resulting in two competing and non-certified iPhone videos of the deposition, and one certified transcript. Are all three versions to be treated equally under Rule 30 as evidence that is potentially admissible at trial? Of course not. There would be no point to Rule 30’s officer and certification requirements if that were the case.
Aside from Rule 30, the court also explained that the video produced by a Zoom call would be distracting and unhelpful to a jury. Zoom video doesn’t capture the deposition witness – and only the deposition witness – and they often give the jury a glimpse inside the homes or offices of the witness and litigators in the case.
Rely on Dedicated Legal Videographers, Purpose-Built Platforms
The Alcorn court mused that one day the court rules might be revised to forgo deposition certification requirements, or to permit a lone court reporter to conduct and certify both the remote video and the stenographic recording. However, it said, that day has not yet arrived.
Until the law is changed, the prudent course of action for litigators is to retain the services of a legal videographer whenever counsel believes that video-recorded testimony is necessary to accomplish litigation objectives. When paired with a purpose-built remote deposition technology platform that minimizes the opportunities for distraction and surprise, litigators can be sure that valuable time spent conducting depositions will not be wasted.