The pandemic caused the practice of law to quickly evolve in a number of ways. Firms quickly ramped up working remotely, courts adopted protocols for electronic submissions where e-filing was formerly not available, and remote depositions and hearings became commonplace.
In order for depositions to procedure remotely, many states had to modify their rules of practice to allow oaths to be taken remotely and for the examinations to be conducted without the witness being in the presence of the reporter.
During the pandemic the number of depositions I took remotely exceeded the number taken annually in any year other period. That volume has continued even after the pandemic ended.
Remote depositions avoid the need for travel by the witness and counsel, allow for more flexible scheduling, and routinely permit an examination under oath of witnesses outside the 100-mile federal limit or across state lines.
Greater preparation is necessary to conduct an effective remote deposition. Deposing counsel should learn whether the rules of the court in which the case is pending permit the oath to be administered remotely. The court reporter should ask counsel and the witness to confirm that they consent to the oath being administered remotely and to waive any objection at a later date to the remote administration of the oath.
The witness should be instructed ahead of time to have a government issued identification ready to show the reporter on camera to confirm their identify.
Do not take for granted “usual stipulations” as the parties may not necessarily be on the same page as to what that means, particularly in a remote setting. Ask the reporter to read to you or show you the stipulations before you agree to them.
In addition to providing the witness with basic instructions, you should ask a second set of questions tailored to the remote examination.
I suggest always learning:
– The precise location of the witness for purposes of the examination, including in what room of what premises the person is in;
– Whether the witness is alone;
– What equipment is being used by the person for the examination;
– What applications are open on the device other than the remote examination application or Zoom (and will require the witness to represent that he/she is closing any other application);
– The proximity of the witness’ cell phone (and require them to silence it and set it aside or turn it off);
– Whether the location of the examination is a place where the witness will be free of distractions during the duration;
– Whether the witness will promise to notify me if anyone enters the room or anything transpires that might interfere with or present a distraction; and
– Whether the witness has any documents or notes with them (and, if so, what those are and to demand production).
In part II of the Art of the Remote Deposition I will discuss preparing and presenting exhibits.