GENERAL INTEREST Preparing for the Virtual Deposition The first priority for a virtual deposition is to check to make sure it is feasible. After you have selected a court reporter service, arrange for a communications check as soon as possible. At a minimum, the conference technician should have a test call with each of the attorneys involved and the deponent to ensure that their internet connection and conference equipment are adequate. Once the technical issues have been resolved, the parties should agree to a gov-erning time zone if the key participants are geographically dispersed. The deponent’s time zone often makes the most sense. Exhibits are a significant logistical hurdle for virtual depositions. Unlike in-person depositions, parties cannot share documents around the table. There are two solutions to the exhibits issue: printing and shipping or digital. In either case, counsel must plan in advance how to direct the deponent’s at-tention to documents the deponent will be questioned on. The post office is open, and litigation sup-port vendors will print and ship documents to the deponent despite the pandemic. This can help prevent any issues with the deponent being unable to view the documents. This method is not perfect. First, it is more ex-pensive than simply emailing the documents. Second, the documents will normally have to arrive the day before the deposition, which may give the deponent and defending counsel insight into your line of questioning. Finally, last minute additions to the printed exhibits may be impossible. The second option is to share digital copies of the exhibits or have the conference techni-cian display the documents through a shared screen. This method bears no additional cost but includes its drawbacks. Certain video con-ferencing platforms allow the conference tech-nician to give limited control of the document to the deponent, but others do not. If the con-ference technician has to retain control of the document, the deponent will need to tell the technician to scroll the document, zoom in, etc. This is cumbersome and will slow down the process. For depositions that involve detailed reports and other large documents, this may be impracticable. Furthermore, the conference technician and the deponent may be unable to view or display exhibits that require specialized software, such as mapping programs and data analysis programs. In either case, each page of each exhibit should be clearly numbered. Clear document numbering allows the parties to guide each other to the page they are looking at with less room for miscommunication or confusion. Emails and spreadsheets should be trans-formed into PDFs so they can be accurately numbered for ease of reference. Native files, such as emails or Excel spreadsheets, should be avoided because they are difficult to display and navigate. Techniques developed during COVID-19 social distancing may be useful time and cost saving measures well after the pandemic subsides. Conducting the Virtual Deposition The considerations and etiquette that apply to all virtual conferences apply with even greater force to virtual depositions. Participants who are not speaking should mute their micro-phones. Additionally, everyone but the depo-nent, the attorney taking the deposition, and the attorney defending the deposition should turn off their video to avoid distraction. The key participants in the deposition should take steps to prevent any disturbances or inter-ruptions by others—2-legged or otherwise— while the deposition is on the record. At the start of the deposition, all of the participants should pin or lock the deponent’s window as the primary display in the system settings. Most video conferencing platforms alternate between speakers. Even if every-one but the key participants is muted, it can be disorienting for the window to switch between the attorneys and the deponent mid-sentence. Locking the screen on the deponent keeps the focus where it needs to be and minimizes the number of times the primary screen changes between participants. The screen may still alternate between the conference technician’s shared screen and the Virtual Depositions continued on page 51 Michael T. Gwinn is an associ-ate at Smith Pachter McWhorter PLC, located in Tysons Corner. His practice focuses on Government Contracts and Construction litigation. www.vsb.org GENERAL INTEREST FEATURES | VOL. 69 | AUGUST 2020 | VIRGINIA LAWYER 21