There are four main ways to conduct a pretrial deposition in modern law practice: the deposition by written question, the in-person deposition, the remote deposition, and the hybrid deposition. Each has its strengths and limitations, and each can be appropriate in the right circumstances. This post summarizes each type of deposition, along with a suggestion for how modern litigators are using them to advance their cases as effectively and efficiently as possible.
Deposition on Written Questions
Federal and state civil procedure rules permit “depositions by written questions.” In federal courts Federal Rule of Civil Procedure 31 allows a party to depose a witness by submitting written questions that can be answered within a given timeframe. All questioning – direct, cross, redirect, and recross – must be made via written questions served on all parties. During a deposition by written questions, an authorized deposition officer (typically, a court reporter) reads the questions to the witness and then records the witness’s answer.
Most litigators believe depositions by written questions are a poor substitute for other types of deposition. Answers can be provided after weeks of reflection and consultation with the witness’s attorney. And litigators have no ability to observe the witness and make judgments about the witness’s credibility at trial.
Depositions by written questions can be useful when other types of deposition are cost-prohibitive or when the witnesses are unavailable for some reason. For example, the need to obtain testimony from a witness who is incarcerated or living outside the country might lead an attorney to consider a deposition by written questions. Witnesses with only a limited amount of relevant information also make good candidates for deposition by written questions.
However, in modern practice, the ability to obtain testimony via remote technology from any witness, anywhere, has largely obviated the need for depositions by written questions.
This is the traditional pretrial discovery deposition, a transcribed question-and-answer proceeding that simulates in most aspects live testimony in a courtroom. In-person depositions, governed by Federal Rule of Civil Procedure 30 in the federal courts, may be taken from parties, non-party witnesses, corporate representatives, and expert witnesses.
As the name implies, all deposition participants are present in the same location during an in-person deposition. In-person depositions are typically conducted in the office of the attorney who noticed the deposition; another common location for in-person depositions is an office facility established by court reporting services specifically for conducting in-person depositions.
Space permitting, expert witnesses, investigators, and other members of the litigation team may also attend an in-person deposition. In-person depositions are stenographically recorded and transcribed into written form by a certified court reporter. Court rules in some jurisdictions place limits on who may attend in-person depositions. In federal courts, parties may seek a protective order barring the presence of a particular individual if they have a compelling witness-specific reason.
Litigation specialists have traditionally favored the in-person deposition, based on the belief that the adversarial, courtroom-style manner of conducting discovery gives them vital insights about the opposing party’s case and a glimpse into how the witness will be perceived by the factfinder at trial. These same litigators, however, are fast becoming experts at the new “virtual lawyering,” which has severed, to some extent, the tight bond between courtroom specialists and in-person depositions.
Remote depositions are governed by Rule 30 and its many similar state counterparts. By definition, a “remote deposition” is a deposition conducted via communications technology in which all participants – e.g., witnesses, lawyers taking and defending, court reporter, videographer, and interpreter – are all located in a different geographic location. In a remote deposition, the witness oath is administered remotely via technology. Remote depositions are identical to in-person deposition in all other aspects to the maximum extent possible given current communications technology.
In remote depositions, exhibits and other documents can either be shared in advance or introduced in real-time via emerging, purpose-built remote deposition technology platforms. Today, remote depositions (along with hybrid depositions) comprise the majority of pretrial depositions conducted in the United States due, in large part, to:
- litigators’ new technology skills in virtual advocacy
- cost-effectiveness and case-management efficiencies
- judicial preference for remote as a means to reduce case backlogs
Remote depositions have been permitted by court rule for decades, though they were uncommon until the COVID-19 pandemic. Today they are a staple of modern litigation practice. The rules for noticing and conducting remote exhibits have been revised in many jurisdictions to capture best practices adopted during the pandemic, so litigators conducting remote depositions should take care to carefully review the procedural rules in their jurisdiction, along with any local rules and individual judge’s rules.
A “hybrid deposition” is similar to a remote deposition in all respects except that some of the participants are together in the same location. For example, the witness, the witness’s attorney, and the court reporter are all present in the same location but the examining attorney is remote. Hybrid depositions are, in practice, more common than fully remote depositions.
As is the case with remote depositions, hybrid depositions can be recorded stenographically, by video, and/or by audio recording technologies.
Hybrid depositions are favored by litigators who, for strategic reasons, want to be in the same room with the witness when defending a deposition. Hybrid depositions also occur when litigators want to have the court reporter or videographer present with the witness during the deposition, either for the administration of the oath or for other purposes.
There are no hard and fast rules for deciding when any particular type of deposition is appropriate for a particular case or witness. Litigators will necessarily weigh the needs of the case against deadlines, emerging judicial views on pretrial discovery practices, and case budgets. In a professional environment where courts and law firms are rapidly adopting remote technologies, it might be difficult for litigators to insist on in-person depositions over the objections of an opposing party. However, technology has given litigators choices they never had before. That’s a win for everyone involved in the justice system.