Even today some attorneys approach remote depositions with a small measure of trepidation. They worry that the lack of physical proximity diminishes their ability to engage with the deponent. They wonder how they can effectively, and efficiently, introduce and use digital exhibits. And they worry that the remote environment is an invitation for mischief.
Fortunately, these concerns are largely overstated, or absent entirely, in the vast majority of litigated cases. That’s because for every “problem” created by remote depositions there is a handy, tried-and-true solution worked out by experienced litigators and judges. The solutions proposed below are drawn from the American Bar Association’s Best Practices for Remote Depositions and from court orders addressing ethical problems that have arisen during remote depositions.
Problem: Scripted, Non-responsive Answers
It’s problematic when a remote deposition witness answers questions by reciting language verbatim from a prepared text. Yes, there are situations in which it is proper for a deponent to use prepared notes. There are also circumstances in which the use of notes by a deponent is improper. During a remote deposition, the examining attorney may not be able to detect whether or not the deponent possesses notes or is reading from those notes during the deposition.
Solution: The examining attorney should ask the deponent what documents are in their possession. Per the ABA: “[T]he questioning of a witness about materials possessed during the deposition allows the parties participating in the deposition with an opportunity to agree on what should or should not be in front of a witness while being examined.”
In Doe I v. Exxon Mobil Corp., 539 F. Supp. 3d 59 (D.D.C. 2021), the district court imposed sanctions on a corporate representative, deposed under Rule 30(b)(6) of the Federal Rules of Civil Procedure, who repeatedly provided evasive and non-responsive answers by reading from a prepared script.
The court also sanctioned the attorney defending the deposition for not taking measures to curb the deponent’s misconduct. Because the defending attorney never encouraged the deponent to provide direct answers to specific questions, she is responsible for the deponent’s misconduct, the court remarked.
Problem: Witness Coaching
Witness coaching is unethical regardless of whether the deposition is remote or in-person. However, the absence of physical proximity between the examining attorney and the deponent creates a situation where electronic messaging or off-microphone communications could occur without the knowledge of the examining attorney.
Solution: The examining attorney should secure an agreement that the deponent will not communicate with anyone – including the defending attorney – during the remote deposition. Per the ABA: “[W]hen taking a remote deposition, the examining attorney needs to be more diligent in ensuring that improper communications with the witness do not occur during the deposition.”
Careful counsel will want to include protections against witness coaching in a remote deposition protocol and obtain the deponent’s agreement – on the record – to abide by the specific anti-coaching provisions in the protocol.
Courts have meted out harsh justice on attorneys caught coaching witnesses during remote depositions. In Barksdale School Portraits LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), the defending attorney surreptitiously coached the deponent during the deposition, a fact that nearly went undetected because both were wearing masks. The trial court disqualified the attorney, admitted the video of the deposition into evidence, and informed the jury that the witness was coached during the deposition.
Attorneys were suspended from practicing law for witness coaching during remote depositions in In re Florida Bar v. James, 329 So. 3d 108 (Fla. Nov. 18, 2021)(coaching via text messages), and In re State Bar of Arizona v. Claridge, No. 20-2214 (Ariz. Jan. 21, 2022)(coaching via videoconference platform’s chat feature).
In yet another witness coaching case, Shimkus v. Scranton Quincy Clinic Co., LLC, No. 19-CV-3534 (Ct. Com. Pl Lackawanna Co., Dec. 7, 2020), defending counsel was caught coaching the deponent by whispering from an off-camera location, despite language in the remote deposition protocol specifically forbidding this type of misconduct.
Problem: Time Pressure
Federal and state procedural rules may place a limit on the number of hours a witness can be deposed. Remote depositions can bump up against these time limits for several reasons: counsel’s inexperience with remote depositions, technology failures that require the deposition the “stop and re-start” multiple times, or additional time needed to manipulate digital exhibits during complex depositions.
Solution: Secure an agreement with opposing counsel that some depositions may exceed time limits contained in court rules. Memorialize the agreement in a remote deposition protocol or case management order.
Problem: Cross-Talk, Inaudible Testimony
Cross-talk among deposition participants threatens the integrity of the record for all depositions. But the problem of cross-talk is worse during remote depositions, where the court reporter lacks contextual clues such as the sight of people speaking (and who is not speaking) and the audio perception of where a sound is coming from.
Solution: Attorneys must be on heightened vigilance against cross-talk during remote depositions. An instruction regarding cross-talk from the court reporter or examining attorney at the beginning of the deposition will help.
Per the ABA: “The attorneys participating in a remote deposition must be even more careful not to speak over one another and to ensure the ability of the court reporter to transcribe the deposition accurately. In addition, the attorney conducting the examination must be patient with the court reporter to ensure an accurate transcript results from the deposition.”
Problem: Technology Failures
Despite the best efforts of accomplished litigators, technology occasionally breaks down, making it near-impossible to conduct the remote deposition as planned.
Solution: Have a “Plan B” for just such an occasion. Everyone is prepared and assembled for the deposition. If at all possible, don’t waste this opportunity to complete the deposition. If you can’t get the video conference software to work, can you switch to a low-tech solution such as a conference call bridge? Per the ABA: “Consider having an alternative method for conducting the deposition such as a conference call number in the event technological issues arise during the remote deposition.”
Problem: Miscellaneous Deponent and Attorney Misbehavior
Witness coaching, outside influences, and boorish behavior by witnesses and litigators are an ever-present threat to the integrity of the deposition process. Unfortunately, the social pressure we all feel to comport ourselves honestly and professionally can evaporate, somewhat, during online communications.
Solution: The answer is sunlight, which U.S. Supreme Court Justice Louis Brandeis reportedly called “the best of disinfectants.” During a remote deposition, the sunlight is provided by video cameras. Per the ABA: “Ensure that the remote conference platform provides satisfactory views of the court reporter, other counsel, and the witness to allow for visual observations like a hearing or trial.”
In fact, the ABA says that examining counsel should require everyone involved in the remote deposition – attorneys, support personnel, and anyone in proximity to the deponent –to be on camera. At present, however, few jurisdictions have an explicit procedural rule requiring all remote deposition participants to be audible and on camera. This means that counsel will have to take affirmative steps to obtain these protections against misconduct.
Attorneys may find our Elements of a Strong Remote Deposition Protocol ebook useful when working out responses to these and other novel challenges raised by remote depositions. The ebook explains why remote depositions are a cost-efficient tool for pretrial discovery, describes common remote deposition challenges, and explains how to protect client interests through remote deposition protocols obtained by stipulation or court order.