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):
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.
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.