Four Questions Litigators Should Ask Before Conducting an In-Person Deposition

As the United States emerges from a prolonged period of remote legal proceedings and reduced in-person interactions to minimize the transmission of COVID-19, many litigators are weighing the desirability of in-person depositions.

This time around, however, there are considerations that were not present prior to the pandemic. Responsible lawyers must now take steps to protect the health and safety of everyone involved in an in-person deposition. The use of remote depositions is now commonplace and is, in fact, strongly encouraged if not mandated in some jurisdictions. Finally, many lawyers have developed expertise with digital communications technologies. “Remote versus in-person” has become a strategic — not a casual — choice these days.

We’ve identified four questions every litigator should ask before setting their next in-person deposition.

1. Do I need to conduct this deposition in-person?

There may be situations where the witness either lacks adequate technology or the technology competence to engage meaningfully in a remote deposition. In these cases, an in-person deposition could be the best choice. Lawyers should consider whether a “hybrid deposition” — where some parties participate remotely while others share a physical location — might address concerns about a witness’s ability to engage in a remote deposition.

The legal profession’s experience during the COVID-19 pandemic has demonstrated that a remote deposition can be an effective and efficient pretrial discovery tool in even the most complex matter. The secret to success is preparation and practice.

2. Are in-person depositions permitted in my jurisdiction?

While the broad trend nationally is toward a return to in-person proceedings during 2021, the persistence of the COVID-19 Delta Variant has created a patchwork, stop-and-start dynamic across the country. Every jurisdiction has its own local standing orders for reopening and moving cases forward during the pandemic.

During the early months of the pandemic, Rodney Gilstrap, Chief Judge for the U.S. District Court for the Eastern District of Texas, prohibited all in-person depositions (PDF) (“There will be no in-person depositions conducted during the pandemic.”) That order was only recently vacated, on July 6, 2021, in light of progress made vaccinating the public and revised COVID-related guidance from the Centers for Disease Control and Prevention.

Lawyers considering setting an in-person deposition should first review their local court rules, then consult local government health and safety guidelines for approved measures to conduct safe indoor gatherings during the pandemic.

3. Can I provide a safe indoor environment for conducting the deposition?

Depositions can be conducted anywhere, though they are most often held at a meeting space offered by the court reporting service or at the office of one of the attorneys involved in the litigation. Regardless of where the deposition is held, the indoor environment must comply with local guidelines and, ideally, provide participants with confidence that their health will not be compromised during the proceeding.

Commonly adopted health and safety measures include:

• Review vaccination and/or health screening status for all deposition participants
• Provide clean, disinfected surfaces for each deposition
• Seating arrangements should create at least six feet of separation among all participants
• Eliminate food and beverage service from shared sources

Face masks, which are mandated in many public settings, have proven to be a thorny issue in deposition practice. Some court reporters are reluctant to work in-person with a masked deponent. And many litigators prefer that deponents testify without a mask — there’s less risk that testimony will be muffled or inaudible, and some counsel believe they are better able to assess credibility and other visual cues when the deponent’s face is not obscured by a mask. As with any other foreseeable, contentious issue, the question of masks should be worked out in advance of the deposition and, if necessary, reduced to writing. It goes without saying that remote depositions can eliminate this source of contention.

Some court reporting service providers may offer bottled water to their clients. It is a good idea, however, for deposition participants to bring their own beverages and other personal items such as pens and notebooks.

If feasible, deposition participants should also consider substituting a number of smaller desks and tables for the typical large conference room table employed during depositions.

4. How should my team conduct itself during the deposition?

The health and safety of in-person deposition participants will be enhanced by the thoughtful observance of behaviors most persons have come to expect during the pandemic.

Deposition participants should avoid physical contact with one another. Also, resist the urge to gather in open spaces and break rooms.

Deposition participants should at all times maintain at least six feet of distance from each other.

Deposition participants should wear a mask that covers their mouth and nose.

Finally, the health and safety of all deposition participants should be respected: do not attend an in-person deposition while sick.

To the extent that COVID-19 safety measures are important in securing a witness’s testimony, lawyers might consider negotiating COVID-related ground rules in advance and including them in the notice of deposition.

Esquire believes that health and safety of our employees, clients, and service providers is paramount during these challenging times. For a full explanation of the steps we’ve taken to keep everyone safe while still maintaining the quality of our services, visit our information page, Conducting Proceedings During the COVID-19 Pandemic.