When the COVID-19 pandemic struck in 2020, experienced litigators quickly discovered that they would have to adapt and learn to thrive in a new adversarial arena — the computer monitor.
And adapt they did.
Bar associations worked hard early on to provide ethical guidance for thousands of lawyers facing the prospect of an indefinite period of remote work. The Pennsylvania Bar Association’s Ethical Obligations for Lawyers Working Remotely, Formal Op. 2020-300 (April 10, 2020), was one of the first attempts to set ethical ground rules for remote, online lawyering.
The American Bar Association published Five Tips for Conducting Video Depositions, one of the hundreds of guides published across the country in 2020 — all intended to help litigators continue to provide high-quality legal services during trying times. First-time remote litigators learned where the Mute button was located on the Zoom videoconferencing platform, and everyone learned to be vigilant when sharing their screen during a deposition.
Litigators new to remote depositions learned that their computer equipment needed to be upgraded and that more planning and preparation were required to succeed at remote, at least at first. We joined the education effort, sponsoring webinars on how to ethically conduct remote depositions; and publishing guidance on how to appear professional and prepared during a remote hearing, how to protect client confidential information during remote depositions, and how to effectively share documents during remote depositions.
The end result? Today the vast majority of depositions are remote depositions, up markedly from the low single digits share of depositions they enjoyed in 2019.
Remote depositions are popular, too. A survey published in late 2022 by the American Bar Association found that an overwhelming majority of attorneys preferred remote depositions to in- in 2022 said that they preferred depositions — along with bench trials, pretrial motion hearings, and court-ordered mediations — to be conducted remotely.
Remote depositions have also changed the law. The convenience of remote depositions relative to in-person depositions is a factor that judges now consider when deciding claims that a particular deposition would be burdensome or objectionable for some other reason.
Rule 26(b)(2) of the Federal Rules of Civil Procedure allows courts to place limits on pretrial discovery if:
iii. the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
When entertaining a Rule 26-based objection to discovery, judicial weighing of the burdens and benefits of conducting a particular deposition will work out differently when the discovery sought is a remote deposition. Two recent cases illustrate the point.
In Rowley v. City of New Bedford, Mass., No. 23-0003 (W.D. Ky., April 17, 2023), plaintiffs in a federal court in Massachusetts issued a subpoena to remotely depose a doctor residing in Kentucky. The doctor filed a motion to quash the subpoena, alleging that compliance would be inconvenient. The court denied the motion, finding that a remote deposition would be minimally inconvenient if at all.
In another recent case, Lewis v. Hirschback Motor Lines Inc., No. 20-1355 (S.D. Ill., April 19, 2023), the court turned back an objection to a deposition that would have put the plaintiff over the federal limit of 10 depositions, noting (among other factors) that the burden to the objecting party was slight because the deposition witness could be prepared remotely by his attorney.
Finally, the technology used to conduct remote depositions has changed for the better since 2020. General purpose videoconferencing platforms, such as Zoom, Webex, and Microsoft Teams, were sufficient, yes, but that was mostly due to lawyers’ determination, patience, and willingness to lower their expectations for what these software solutions could reasonably deliver.
Litigators in 2023 can do much better. Unlike Zoom and its office software competitors, modern remote deposition technology solutions are purpose-built to do one job and do it well: schedule and facilitate a remote deposition as efficiently and securely as possible. Consider the benefits offered by a modern remote deposition solution such as Esquire Solution’s eLitigate platform:
- No software to download. Everything is available on the Web, accessible anywhere by anyone with a Web browser.
- No more screen-sharing. Exhibit management tools mirror in-person deposition workflows. Documents are securely uploaded, available for a private preview, and available for use during the deposition in a manner that keeps lawyers in complete control.
- Modern document analysis and display tools. Lawyers can conduct keyword searches on documents, annotate and draw shapes, apply signatures, direct the witness to a page, and expand exhibits to view in full-screen mode.
- Robust testimony playback capability. Litigators can view live running speech-to-text in real-time. Litigators can search and play back the actual audio record via an audio clip synchronized with the text.
- Secure rooms for sidebar discussions. Important off-the-record communications are conducted in an environment that attorneys control.
- Industry-standard data security protections. All media traffic, audio, and video are AES-256-bit encrypted from end-to-end during the deposition.
- Continuous innovation. The eLitigate remote deposition platform is improved every week in response to customer feedback, resulting in a remote deposition experience that is truly built by and for litigators.
None of these features were available on the general-purpose videoconferencing tools that were available to litigators in 2020. With today’s modern remote deposition technologies, we really have reached a point where compelling, effective depositions can be conducted remotely at a fraction of the cost of in-person proceedings.