Practical Guidance For Virtual Depositions Under Pandemic Conditions

How do you pass a document across a table 2,000 miles long? Attorneys across the United States and abroad have had to grapple with these and other questions while conducting depositions during the pandemic.

Virtual conference platforms have proven to be useful for conducting depositions in the face of social distancing and travel restrictions. Virtual depositions provide unique challenges. This article provides practical advice on how to conduct virtual depositions with as few deviations from normal practice as possible.

In-person depositions require a minimum of four parties: the deponent, the attorney taking the deposition, the attorney defending the deposition, and the court reporter. Virtual depositions require a fifth role: the conference technician. The conference technician’s responsibility is to host and moderate the conference room and to display documents on screen as requested.

The attorney acting as second chair can fill this role if necessary, but it is a distraction and not recommended. The conference technician is involved in the minute to minute operation of the virtual deposition platform. The second chair will not be available for other tasks if they are preoccupied with showing exhibits and muting microphones. Additionally, most court reporter companies provide a conference technician at no extra charge as part of their virtual deposition service.

Second, more stakeholders will attend virtual depositions than in-person depositions. Many stakeholders will not observe in-person depositions because of the travel time and expense as well as practical limits on the number of people that can fit in the room. Virtual depositions do not require travel and there are no practical limits to the number of people that can attend. Attorneys taking virtual depositions can expect a larger audience and more client involvement than normal.

Finally, the attorney taking the deposition has less control over virtual depositions. Internet connections can fail and computers can crash. Attorneys taking virtual depositions should make contingency plans in case a technical failure brings the deposition to a sudden end.

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 governing 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 attention to documents the deponent will be questioned on.

The post office is open, and litigation support 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 expensive 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 technician display the documents through a shared screen. This method bears no additional cost but includes its drawbacks. Certain video conferencing platforms allow the conference technician to give limited control of the document to the deponent, but others do not. If the conference 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 transformed 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.

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 microphones. Additionally, everyone but the deponent, 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 interruptions 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 everyone 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 deponent’s, but the deponent will never leave your monitor if the deponent is pinned.

The deposing attorney should incorporate the conference technician into the deposition plan. First, instruct the conference technician to pull up the exact part of the document that you would like to discuss. The deponent may look at the documents in hard copy or a separate window, but this method will help everyone locate the language under scrutiny. Second, make sure that the documents are clearly labeled and organized so the conference technician can find them. Finally, if needed, direct the conference technician to point to or highlight specific text or sections of the document. The conference technician can highlight or draw boxes around segments you would like to discuss.

Finally, make sure that the deponent testifies on the record about any individuals that are in the room with the deponent, the nature of any documents referenced, and any communications received during the deposition. In an in-person deposition, the attorneys normally have complete control over who is in the room, what documents are brought into the room, and any communications the deponent receives during the on-the-record portion of the deposition. In contrast, in a virtual deposition, another person might be in the room but out of camera view. Similarly, the deponent could be prompted by email or text message without the deposing attorney’s knowledge.

This can be mitigated by requesting the deponent to declare on the record: who is in the room during the deposition; that the deponent did not receive any communications during the deposition; and to identify all documents examined in response to questions.

Virtual depositions can be a useful tool to keep discovery moving forward despite the numerous disruptions caused by COVID-19. Additionally, the techniques developed during COVID-19 social distancing may be useful time and cost-saving measures well after the pandemic subsides. Adapting this guide to your own practice can help mitigate difficulties and maximize the benefits of virtual depositions.

Michael T. Gwinn is an associate at Smith Pachter McWhorter PLC, located in Tysons Corner. His practice focuses on Government Contracts and Construction litigation.