Practicing during a Pandemic: Remote Depositions

The Bencher—July/August 2020

By Ada K. Wong, Esquire

Before COVID-19, a vast majority of attorneys attended depositions in person. However, times have changed. Although many stay-at-home orders are being lifted in various states and courts are re-opening, life as we know it is different. Life as a lawyer has also changed, and it may take many of us months to resume “normal” activities. However, we must be able to continue litigating, which includes taking depositions.

In today’s new world, we simply may not be able—or want—to take in-person depositions. Witnesses, especially those with compromised immune systems, may not feel comfortable endangering their health to be deposed in a cramped conference room where physical distancing is not possible. So, in this pandemic world, it seems we are left with three options: delay depositions until we can take them in person, forgo some depositions, or conduct remote depositions.

I am a proponent of conducting remote depositions via video. I hope you will be too after reading this article and giving it a try. Below are reasons to take depositions remotely as well as practice pointers.

Advantages of Remote Depositions

1. Save time, money, and energy. You do not have to spend hours coordinating travel plans, packing, traveling, risking infection, and suffering from jet lag. There is no need to pay for lodging, airfare, or car-share rides. Saving time also means being more productive working on cases.
2. More flexibility. You can easily add new exhibits during breaks and share them instantaneously over the internet, which is often hard to do in person when you are taking a deposition away from your office. Using digital copies also saves you or your staff the time and money of printing multiple copies.
3. Increased preparedness. It forces you to prepare for the deposition earlier than you otherwise might because you need to have all your exhibits handy and ready to go, especially if you are sharing them with the court reporter or opposing counsel in advance.
4. Allows for greater search abilities. It allows you to search exhibits for keywords during the deposition. Practice tip: In Adobe Acrobat, run the optical character recognition (OCR) function, which converts images of text (scanned text) into editable characters so you can search and copy the text. (The process varies depending on the version of Acrobat you have. OCR can be performed on PDF files that contain images, vector art, hidden text, or a combination of all three.)
5. A more comfortable deponent may lead to better results. The deponent may provide better and more open admissions and true reactions to your questions. The deponent will be more relaxed without you being there in person and when they are speaking from the comfort of their own home.
6. More privacy for you and a surprise effect on the deponent. Unlike face-to-face depositions, deponents will not know what you are looking at. This is especially helpful when you are looking at documents that may impeach them.

Practice Pointers

1. Deposition notices should reflect that the deposition will take place remotely and by video.
2. Stipulate to remote depositions with opposing counsel. If opposing counsel does not agree, see if your state has an order allowing for oaths to be administered remotely. I practice in Washington and California, and on April 2, 2020, the Washington State Supreme Court, “In the Matter of Temporarily Suspending Local and State Court Rules that Require In-person Administration of Oaths or Affirmations” (No. 25700-B-610), ordered the suspension of “any local or state court rule that requires administering any oath or affirmation in-person where such oaths or affirmations can be administered remotely by available technologies, including videoconferencing or teleconferencing” until otherwise ordered. As such, there is no excuse for opposing counsel to not agree to remote depositions.
3. Decide how you will handle remote exhibits. Coordinate with the court reporting agency to streamline the exchange of exhibits. For instance, if you will be using Zoom, are you going to use the “share screen” function or are you going to use the “chat” function to send the entire document? Will you send all the exhibits to opposing counsel in advance or will you send each document as you use it?
4. Clarify how the exhibits will be marked. Ideally, exhibits should be marked by the court reporter and not by counsel. A cost-saving method is to have the court reporter electronically stamp the exhibits using Adobe Acrobat PDF instead of printing out hard copies and applying a physical exhibit stamp.
5. Have a test-run with the court reporting agency beforehand, including the handling and stamping of exhibits.
6. Have a backup plan in case the video or internet does not work for any person during the deposition. Have everyone’s phone numbers handy prior to the deposition.
7. Confirm in advance. If you want the deponent to be available via video, confirm that in advance so the deponent does not just call in to the deposition from his or her cellphone.
8. Confirm use of exhibits. If you plan on using exhibits, ensure that the deponent will be on a computer that allows for him or her to open PDF documents.
9. Have ground rules. State on the record at the beginning and make sure that the deponent understands that he or she cannot look up something online or message a friend or another witness during the deposition just because they have access to their phone or computer.
10. Make marking exhibits easy. During the deposition, state the name of the document you want marked as an exhibit and the exhibit number. This procedure makes it less confusing for everyone and will make it easier for the court reporter to go back and stamp the exhibits after the deposition because it is likely that the court reporter will not be stamping simultaneously.

I hope litigators find this article helpful and embrace taking depositions remotely by video and continue to do so even after we are no longer in a pandemic.

Ada K. Wong, Esquire, is the owner and managing partner of AKW LAW, with offices in Washington and California. She is a civil litigator and handles employment litigation, business disputes, and civil rights matters. She was an adjunct professor at the Seattle University School of Law, serves as an arbitrator in Washington, and is on the Editorial Board for The Bencher. She is a member of the William L. Dwyer American Inn of Court in Seattle.