By Chris Henry
Before the COVID-19 pandemic, many attorneys had a strong preference for in-person depositions. Today, as the legal profession (and the world) moves forward, a return to pre-pandemic levels of in-person depositions is unlikely. This is because remote depositions have largely proven to be effective, efficient, and less expensive for clients. In fact, courts across the Commonwealth, which turned to remote proceedings during the pandemic, recognize that ample resources exist to allow counsel to continue remote depositions, and that any issues, such as technical ones, numerous exhibits, and “Zoom fatigue,” can be readily overcome. This article discusses the best practices and key considerations for making the most of remote depositions.
Clearly Set Out (And Negotiate If Necessary) Deposition Parameters
When noticing a remote deposition, it is important to cover the basics. Your notice should state that the deposition will be remote, provide the time zone for your start time (as attendees may join from different time zones), and identify any materials to which the deponent should have access that cannot be distributed electronically, such as confidential discovery or other information subject to distribution restrictions.
In addition, in advance of the deposition, consider whether you need to raise and negotiate other specifics with opposing counsel (if not already covered by a separate stipulation or court order, for example, the SJC’s Updated Order Regarding Remote Depositions). One key consideration is the location of the deponent and the defending attorney. For instance, you may want to confirm that the deposition will be fully remote, with all attendees participating remotely from separate locations. Otherwise, when the deposition begins, you may be surprised to learn that the deponent and defending attorney are appearing “remotely” while seated next to each other in the same room. Another key consideration concerns the treatment of any exhibits circulated before the deposition. For those, confirm that any packages containing exhibits will be unsealed only on the record and at the questioning attorney’s direction.
If you are on the receiving end of a deposition notice and want to present your witness remotely, tell opposing counsel your legitimate reason for proceeding remotely as soon as practicable. Then raise and address any specifics that need to be ironed out in advance such as those discussed above. If a protective order is necessary, after a legitimate reason for a remote deposition is shown, the other side must demonstrate prejudice, which is more challenging in the post-pandemic world.
Preparation Is Key (Of Course), And You Should Practice How You Play
As with all depositions, preparation for remote depositions is key. When preparing a witness, hold remote preparation sessions to develop or increase the witness’s comfort with the remote environment. Describe how the remote deposition will take place. For example, note that a remote deposition might be attended by a technician tasked with marking and distributing exhibits (through an exhibit distribution platform or chat feature), as well as more observers than one might ordinarily expect. Those observers can include experts and junior attorneys second chairing or otherwise attending for case purposes.
The witness should also know that, despite best efforts, technical issues arise. Teach your witness that if they arise (for example, a spotty connection leaving the witness undefended), the witness can insist on a break and wait for them to be fixed. The witness should expect the questioning attorney to ask about the witness’s location, people in the room, and materials brought to the deposition, and to request confirmation that the witness understands that texts, chats, emails, and the like should not occur while on the record.
You should demonstrate how exhibit distribution will take place and teach the witness that, if a questioning attorney tries to use only screen sharing, they should request the full document. Note that you will make that request if the witness forgets. You should download local copies of exhibits during the deposition, so you and your witness maintain control over and the ability to navigate them. You should also explain that a potential drawback of remote depositions is that witnesses sometimes pay less attention to defending attorneys. However, it is important that the witness be careful and pay attention to your objections even if, on deposition day, you appear as just another small head in a gallery. Finally, the witness should dress appropriately and appear in a suitable location (for example, the witness’s or your office) with an acceptable background (real, virtual, or blurred), and know how to turn off the video feed, mute the microphone, and separately contact you during breaks, as needed.
If you are taking the deposition, make sure you plan and practice the logistics. Understand how your video platform works. Ask your vendor for a tutorial, if needed. Ensure attendees have the links they need (for attending and exhibit distribution). Upload or stage potential exhibits no later than the night before the deposition, and confirm they are ready. Use innocuous filenames for exhibits, such as production numbers (not “Smoking Gun.docx”), because they are frequently visible when an exhibit is distributed. Also, even though marking and circulating your own exhibits is generally straightforward, most vendors offer technician assistance. Use that assistance if it will help your questioning flow smoothly (and your client does not mind the added, usually very reasonable, cost). The goal is to eliminate foreseeable points of friction and surprise.
Take And Defend Remote Depositions As You Would In An In-Person Setting
At a remote deposition, a questioning attorney should cover the preliminary issues noted above, such as witness location, people in the room, and admonitions about separate communications, but the deposition should quickly resume the cadence of a typical, in-person deposition. Deposition defense likewise should proceed as it typically would in an in-person setting because you and your witness will have covered the nuances of the remote deposition in thorough preparation.
Remote depositions are here to stay and are an important, effective, and often less expensive tool for attorneys to harness and use to serve their clients’ interests.
Chris Henry is an attorney in the Boston office of Latham & Watkins. He is a member of Latham’s Intellectual Property Litigation Department and focuses on trade secret and patent litigation.