Remote Depositions in Response to COVID-19
The COVID-19 pandemic and related stay-at-home directives have led to an increase in remote depositions. Historically, attorneys have been reluctant to conduct remote depositions, but there can be certain advantages to be gained from their adoption. On several occasions, Gleason Managing Directors have been deposed virtually and are providing insight for consideration to aid in the efficient execution of this discovery tool.
The COVID-19 pandemic and related stay-at-home directives have led to an increase in remote depositions. Under Federal Rules of Civil Procedure, a deposition may be conducted by remote means should the parties so stipulate or by court order. Since the beginning of the outbreak, many courtrooms have been closed, but some have encouraged (or ordered) the use of available technology to move forward with case discovery, including the use of remote depositions.
Although the technology to perform remote depositions has existed for years, attorneys have been reluctant to implement such technology. Common criticisms of remote depositions include (but are not limited to):
- The potential for internet/network disruptions
- Poor audio quality
- Difficulty in handling and coordinating deposition exhibits
- Difficulty reading the deponent’s body language or other non-verbal communication
- The potential for remote coaching of the witness
- Network security
Despite these concerns, the practice of conducting depositions in a remote environment may provide several benefits to the litigation. Perhaps most importantly, given the nature of these unprecedented times, parties will maintain compliance with local government restrictions and/or health and safety protocols (e.g., social distancing, travel restrictions, etc.) One significant advantage of remote depositions is in the form of cost and time savings through a reduction in travel. Furthermore, counsel may have the ability to participate in a greater number of depositions than if traveling between locations for physical attendance.
Several Gleason Managing Directors have participated in remote depositions in the wake of the pandemic and have developed a list of considerations to enhance the virtual experience.
- Ensure all parties have adequate technology – including a webcam, microphone with clear audio, and dual monitors (to allow on-screen video on one screen and exhibits on the other screen).
- Ensure the deponent has a quiet environment free of interruption for the duration of the deposition and that the background view is clean and appropriate.
- Familiarize oneself with the deposition software (e.g., Zoom) in advance of the deposition to improve efficiency. Provide a tutorial the day before if necessary.
- Deposition exhibits should be provided to the court reporter in advance and to the deponent in a sealed envelope or box to be opened upon the start of the deposition.
- The deponent should take an extended pause before responding to a question to provide the defending attorney time to issue an objection and allow the court reporter time to receive the testimony clean without overlap.
- Careful planning should be performed to ensure the deposition stays on track and makes effective use of the allotted time.
Remote depositions may require additional preparation, communication, and coordination, but will likely be an essential skill to master as remote depositions are likely to become more commonly utilized in the future.
As court systems continue to cope with the impact of COVID-19 and transitioning to a virtual environment for depositions, the logical next step is an increase in remote trials. In July 2020, the Southern District of New York conducted a remote bench trial in a patent infringement case. Direct testimony was submitted in writing and cross-examination occurred live via Zoom. In the current environment, it is likely for patent infringement cases to be tried either partially or completely via remote testimony.