When the COVID-19 pandemic struck in early 2020, litigators reached for any technology they could find to conduct depositions at a safe distance. In most cases, that technology was Zoom video conferencing — an inexpensive, user-friendly technology platform that could, with preparation and practice, be repurposed for remote depositions.
Remote depositions — many of them conducted with Zoom videoconferencing — are now a fixture in modern law practice. Hundreds of thousands of remote depositions have been conducted during the still-ongoing pandemic, and there’s little reason to believe that the prevalence of remote depositions will diminish when public health conditions improve. According to an October 2021 survey conducted by Esquire Deposition Solutions, 60% of attorneys will conduct more depositions virtually post-pandemic than during the pandemic.
So far, the challenge for litigators has been to make remote depositions as effective as in-person depositions. And for the most part they have succeeded. But what if, through technology, it becomes possible to make remote depositions more effective than in-person depositions? What if the remote exhibit-handling experience becomes easier than former in-person processes? What if prior testimony could be captured, highlighted, and brought to the deponent’s attention with the click of a button?
That day could be just around the corner.
Most generic videoconferencing platforms shortcomings as a remote deposition platform are becoming apparent to some litigators. Typical concerns include the risk of inadvertent sharing of information, and the feeling that counsel is fighting against the tendencies of a technology made for business collaboration as opposed to courtroom litigation.
As the Pennsylvania Bar Association (along with many other state bars) recently reminded everyone, all attorneys have an ethical obligation to conduct remote proceedings in a way that minimizes the risk of loss of client confidential information.
These are all substantial concerns that everyone in the litigation community — lawyers, clients, and technology vendors — must address. It’s vitally important that emerging virtual legal processes provide at least the same measure of justice as in-person proceedings. In fact, many legal observers believe that virtual proceedings have the potential to improve the justice system — not merely simulate current arrangements.
When assessing novel challenges posed by remote depositions, it’s useful to ask whether the concern is due to the remote nature of the deposition or whether the concern stems from the technology being used to conduct the remote deposition. In most cases, the problem is technology-related.
Testimony doesn’t have to be irretrievably lost when witnesses talk over each other during a remote deposition. When that happens, it’s a failure of Zoom — a technology that records all participants’ audio in a single track. Esquire Deposition Solutions’ eLitigate virtual deposition platform offers the ability to capture each speaker’s voice on a separate track — a feature known as “speaker diarization.” And because each speaker’s voice is clearly and independently recorded, it’s also possible for litigators to review instantaneous voice-to-text translations of witness testimony and replay the audio of any portion of that witness’s testimony.
Similarly, showing a document to the witness during a remote deposition does not have to be a cumbersome process that requires counsel to operate additional software applications or risk inadvertently revealing client confidential information. The eLitigate virtual deposition platform gives counsel the ability to privately upload documents, question the witness, and control which are shared as exhibits using a single, integrated application that’s purpose-built for litigators. With Esquire eLitigate, it’s also possible to privately preview a document before deciding whether to share it during the deposition.
The same technology gives litigators the ability to keyword search, highlight, annotate, and expand to full-screen view any document used to question a witness during the deposition. Documents used during the deposition can be electronically stamped, a feature not available in other general purpose video conferencing tools. Even better: only documents that have been introduced during the deposition are available for the court reporter to download.
The eLitigate virtual deposition platform offers litigators the ability to conduct secure, off-the-record conversations easily within the same technology platform used to conduct remote depositions. Attorneys can lock sidebar conference rooms to ensure they are secure from other participants in the deposition. There is no requirement that sidebars be set up by the videoconference host ahead of time, nor does the host sit as a gatekeeper controlling and monitoring which individuals may enter the sidebar — as is the case with Zoom. With eLitigate, for example, the attorney desiring a sidebar conference is in control. Directing the court reporter to go off-the-record and inviting the litigation team to “Please meet me in Sidebar Room 1” are all that is necessary to create a familiar, and secure, sidebar conference.
Esquire Deposition Solutions believes that remote depositions can be just as effective as in-person depositions regardless of the complexity of the case. Remote depositions have already proven to be a cost-effective and efficient means of capturing and preserving witness testimony prior to trial. These advantages will remain even after the pandemic passes. And with the exciting new technologies now coming on the market, litigators have every reason to hope that remote depositions will eventually be more effective than traditional in-person depositions for extracting critical, case-determinative testimony prior to trial.