The New “Usual Stipulations”

According to news accounts, a recent discovery deposition in a Pennsylvania business dispute went off the rails when defending counsel refused to agree to “the usual stipulations.” The attorney’s refusal to agree to “the usual stipulations” — a bit of gamesmanship, perhaps — was a prelude to a testy, objection-filled deposition that lasted less than a half hour before deposing counsel terminated it with a vow to seek judicial assistance prior to continuing with the witness.

Deposing counsel appeared to believe that, without securing agreement to “the usual stipulations,” the defending counsel would engage in speaking objections that bordered on witness coaching.

What are these so-called “usual stipulations”? For in-person depositions, “the usual stipulations,” according to West’s Pennsylvania Practice Series (Discovery, Section 9.3), appear to be these:

  • Agreement to waive reading and signing the deposition transcript
  • Agreement that withdrawn questions will be omitted from the transcript
  • Agreement that all evidentiary objections will be preserved until trial
  • Agreement that any opposing attorney’s objection inures to the benefit of all
  • Agreement that an instruction from counsel that the deponent not answer shall be deemed the equivalent of the deponent’s refusal to answer

Unquestionably, stipulations are a good thing. They promote efficiency, they give counsel complete control over how depositions will be conducted and used in the litigation, and they reserve visits to the judge’s chambers for more important matters. The “usual stipulations” cited above certainly promote these objectives in most cases.

What About Remote Depositions?

Wouldn’t it be a great idea to have a similar set of “the usual stipulations” for remote depositions?

Remote depositions have far outnumbered in-person depositions for the past several years. And there’s little reason to believe that this situation is likely to change in the foreseeable future. Just as with in-person depositions, remote depositions have many broadly similar features that could be addressed with a common set of “usual stipulations.”

Here are a few points of agreement that, if reached in advance, would make all remote depositions run smoother:

  • Agreement that if technical issues prevent the court reporter from reliably hearing or transcribing the testimony, then counsel will confer and cooperate with one another regarding the rescheduling of the deposition
  • Agreement all persons participating in the deposition ensure that they can do so in a space that is relatively free from distractions that would inhibit the course of the deposition
  • Agreement that deposing counsel will bear the cost of ensuring that the deponent has adequate equipment to participate in the deposition by video conference, including access to needed software, hardware, internet bandwidth, and other necessary equipment
  • Agreement that no person may initiate a private conference with a deponent (including through text message, instant message, e-mail, chat function, or by any other means) except during a break in the deposition
  • Agreement that, during breaks, counsel and parties may use private (virtual) breakout rooms or other means to communicate as otherwise permissible under the Federal Rules of Civil Procedure
  • Agreement that in addition to recording deposition testimony by stenographic means, any party may request that the deposition is recorded by a legal videographer at the requesting party’s cost
  • Agreement that all objections to the use and admissibility of the transcript or video of a deposition taken pursuant to this order based on the fact that the deposition was taken by remote means, that the court reporter was not present with the deponent during the deposition, and/or that the court reporter is not a notary public in the same state as the place of examination are waived
  • Agreement that the transcript and/or video-recorded deposition may be used at a trial or hearing to the same extent that an in-person deposition may be used at trial or hearing, and counsel agree not to object to the use of these video recordings on the basis that the deposition was taken remotely
  • Agreement that counsel will reserve all other objections to the use of any deposition testimony at trial.

Stipulations along these lines could be embodied in a remote deposition protocol or read into the record at the beginning of each remote deposition. For ideas on additional stipulations to guide remote depositions, litigators should also consult the American Bar Association’s best practices for remote depositions document, recently adopted by the ABA House of Delegates.

When the day arrives that these agreements are in fact “the usual stipulations,” remote depositions will be even more efficient and effective — both for counsel and the client — than they are today.