Battle-tested during the COVID-19 pandemic, the remote deposition proved its mettle and quickly became a staple of pretrial discovery practice. Cost savings to the client, efficiencies to the busy litigator, and tens of thousands of successful outcomes truly have changed the salient inquiry from “Why take this deposition remotely?” to “Why not?”
Advantages of Remote Depositions
With the experience of managing litigation during the COVID-19 pandemic behind them, large institutional clients have been exposed to and impressed by the cost savings created by remote depositions. These institutions may not be as willing to routinely authorize in-person depositions as they once were.
So what are the advantages of conducting most, if not all, depositions remotely? In a nutshell, they are:
- Remote depositions save clients significant amounts of money on attorneys’ fees and travel costs.
- Remote depositions can improve client relationships by trimming litigation costs and increasing case management efficiency.
- From the litigator’s perspective, remote depositions make the litigator more efficient by eliminating travel time and other scheduling friction, thus freeing the litigator to handle other client matters during the workday.
- Remote depositions enable litigators to select expert witnesses based on expertise, credentials, and trial strategy — without the need to consider the geographic location of the expert and his or her willingness to travel.
- Remote depositions advance litigation more quickly than in-person depositions, which require travel and larger blocks of time on both the attorney’s and the court reporter’s schedule.
- Remote depositions can be conducted anywhere with a suitable recording environment and a reliable, robust internet connection.
- Remote depositions, when conducted on a purpose-built technology platform, yield digital deliverables that can be stored in a single location — everything all in one place, accessible by anyone on the litigation team.
These advantages are compelling in any business environment.
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Legal Issues in Remote Depositions
In the federal system and in nearly every other jurisdiction, remote depositions sit on a sound legal footing. Nowhere can a remote deposition be challenged merely on the basis that it was not conducted in-person.
This isn’t to say that remote depositions are above challenge in some particulars. For example, an appellate court in North Carolina recently ruled that a hospital was denied due process when the trial court forbade its attorneys from being physically present with the hospital’s witnesses during remote depositions.
Considerations regarding efficiency and cost savings almost always tip the balance in favor of remote depositions in the federal courts. Rule 1 of the Federal Rules of Civil Procedure calls on courts and attorneys to promote the “just, speedy, and inexpensive determination of every action and proceeding.”
In cases in which the parties cannot agree to a remote deposition, Rule 30(b)(4) directs the trial court will weigh whether (1) there is a good reason to conduct the deposition remotely and (2) the party opposing the remote deposition will suffer an undue burden or hardship if the deposition is conducted remotely. Given the legal profession’s recent experience taking depositions remotely during the COVID-19 pandemic, it seems unlikely that — in all but the most extreme circumstances — courts will entertain arguments that remote depositions present an undue burden on an objecting party.
As for “good cause” to take a deposition remotely, the exigencies posed by the COVID-19 pandemic have faded. However, justifications such as efficiency, cost savings, and easing the burdens of travel will likely continue to provide a compelling reason for taking them. The party resisting a remote deposition is clearly swimming against today’s current.
Practitioners should be aware that emergency orders easing procedural roadblocks to remote depositions, written during the COVID-19 pandemic, are rapidly giving way to court rule amendments and legislative enactments to formalize the procedures for conducting remote depositions. For the most part, these changes are making remote depositions a permanent fixture in pretrial discovery practice.
In many jurisdictions, the legal support for remote administration of the oath to the deponent will have changed from an emergency order to a recently enacted statute or adopted court rule.
For example, in Ohio, a package of proposed court rule amendments would explicitly permit and govern remote depositions in civil and juvenile proceedings. Ohio bears watching. Although remote depositions appear to be broadly supported in Ohio and elsewhere, portions of the Ohio Supreme Court’s rule change proposals that would permit remote civil jury trials have attracted vocal opposition from the state attorney general and state legislators who recently sponsored a resolution blocking that aspect of the proposal.
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Thriving During Remote Depositions
Preparation for the unique challenges presented by remote depositions is widely believed to be the key to professional success.
Key strategies for conducting a successful remote deposition can be summarized as follows:
- Plan ahead, practice deliberately. Practice in advance with the same technology that will be used in the deposition. Take advantage of practice opportunities and sandbox environments offered by deposition services providers. When conducting a deposition where the number of exhibits is a cause for concern, consider dropping Zoom and use instead a technology platform specifically designed for remote depositions.
- Provide robust technology for all participants. Ensure that all parties have the technology to effectively participate in a remote deposition.
- Write a deposition protocol. Memorialize in a deposition protocol stipulations or any special rules governing the deposition. Obtain on-the-record consent to deposition ground rules from all participants.
The procedure to be followed for raising and preserving claims or errors during the deposition is a critical component of a strong deposition protocol. Also, because remote depositions can run longer than a comparable in-person deposition, setting out time limits in a deposition protocol may be helpful.
- Eliminate distractions. Plan ahead to remove all outside influences that may be present in the deposition environment. When a distraction occurs (e.g., when an individual enters or leaves the room or drops off the videoconference), make a verbal notation on the deposition record.
The need to minimize distractions applies to lawyers as well. Counsel should take a moment to close all unnecessary applications to eliminate the possibility of inadvertently revealing to other deposition participants e-mail messages or other confidential materials that may be displayed on a lawyer’s computer screen.
Litigators today operate in an environment in which more than 90% of cases settle in advance of trial. Expertise in conducting a well-run remote deposition is more important than ever and may be a significant professional differentiator in the future.
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It’s a widely accepted view that most technological change happens the same way: gradually, then suddenly. Change advances incrementally, slowly, but then one day the world is in a different place. That’s certainly true in the case of remote depositions. For decades remote depositions were possible but not widely utilized. But then COVID-19, like a hurricane, picked up the legal profession and dropped it in a different place, a place where remote depositions are the default tool for obtaining witness testimony and litigators are expected to be able to conduct them skillfully.