LegalFuel seminar deals with the rising use of video depositions
The “new abnormal” of the pandemic world has swept aside barriers to doing video depositions, but there are new issues for lawyers.
At a May 7 LegalFuel CLE, Halley Peters and Karen Cespedes of Esquire Deposition Solutions went over how courts dealing with COVID-19 have changed the video deposition universe and how the legal profession can best deal with likely permanent changes after the pandemic recedes. Esquire Resolutions provides court reporting services and digital platforms for online depositions and conferences.
The one-hour webinar, Conducting Depositions Online: What You Need to Know (https://www.legalfuel.com/conducting-depositions-online-what-you-need-to-know/), was sponsored by LegalFuel, the Bar’s practice management assistance service. LegalFuel has been organizing several free seminars to help Bar members cope with the seismic shifts the coronavirus has brought to the justice system.
Nothing better illustrates the rapidly evolving legal landscape, Peters said, than Supreme Court Chief Justice Charles Canady creating the Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 on April 21 and adopting the workgroup’s first recommendations in a May 4 administrative order that created or extended many pandemic-related procedures.
That included readopting a provision of a March 18 order that allowed for remotely swearing a witness if the notary or other person authorized to administer the oath “can positively identify the witness” using video technology. While most states and the federal courts allowed video depositions, many did not allow remote swearing in, which limited their use. That’s now changed.
“The new abnormal is anything but normal,” Peters said. “Every single state has issued some type of order addressing the situation at hand, and every single one has talked about the concern for court backlog…. Waiting [to proceed with cases] until this ends is not an option anymore.”
Cespedes said even though attorneys, witnesses, and the court reporter may all be in separate locations, video depositions don’t change the court reporter’s essential roles of swearing in witnesses, taking the record, reading back testimony as needed, and receiving and managing exhibits.
“The reporter should not be responsible for downloading or sharing exhibits, or pausing the recording for off-the-record comments, and they’re not remote technical support for technical problems,” she said.
If lawyers want a video record of the deposition, that needs to be arranged with the service providing the conferencing services or separately if the lawyer is relying on firm or personal equipment, she said.
New types of precautions are also needed, regarding people, procedures, and technology.
“Court reporters should be trained to work in a different way,” Cespedes said. “What kind of training did they receive, do they have a clear idea of their roles and responsibility… and how long has the agency been doing remote reporting, did it precede COVID-19? Can they handle confidential documents in their procedures and is [the service’s] staff trained in document security?
“All parties, especially the witness, should have the correct technology in order to participate in the remote proceeding. While the attorneys have the technology, it’s not always a sure thing that the witness does.”
At a minimum that equipment should be a computer or other electronic device, good speakers and a good microphone – and a fixed location. Peters recalled one deposition where the witness appeared via cell phone while traveling in a car.
“You’ve got to approach this as though you were preparing to record this for trial,” Cespedes said.
Another check is to make sure enough internet bandwidth is available. Attorneys working from home may find other family members watching Netflix, playing online games, or doing other online activities that aren’t leaving enough digital capacity for the deposition. Five megabytes per second is the minimum bandwidth needed, Cespedes said, and 10 mbps is better.
One of the more difficult issues for online depositions is managing documents that must be shared.
Peters recommended having all such documents in one folder on the hard drive — not an online location — of the computer being used for the video deposition. If a document is to be presented for the first time at a deposition, the lawyer needs to ensure that all computer equipment being used by various participants can handle the presentation — many can use the “share” feature on Zoom. She also said there are technological solutions to marking up and numbering exhibits as they are introduced.
Peters said remote witnesses need to be prepped, including proper placement in front of the camera so the attorney can read body language and other clues, but not so far that distracting details are included. The witness should be advised to announce and perhaps show on camera anyone who enters the room with them, and told their cell phones should be turned off and no other recording devices used.
She recounted one deposition where the witness kept looking down and the questioning attorney repeatedly asked on the record if the witness was communicating with someone else. The witness denied that, but the attorney subpoenaed the witness’ phone, which showed he had been communicating with his counsel via text. When presented to the court, “That does not look pretty,” Peters said.
Anyone present at the deposition from any location should be visible on camera, she said, so the court reporter can record their attendance.
Attorneys must also ensure that the deposition and all documents remain secure and that client confidentiality is protected, Peters said, adding an outside service hosting the deposition can help with that. Security lockouts on programs should be used to protect documents and computers checked to ensure there are no other programs running in the background that could compromise privacy.
“It’s the simple slipups that can be exploited,” Cespedes said. “You can leave yourself open to slipups and it’s these security slipups that can leave you and your client open to damage.”
Both Peters and Cespedes predicted that video conferencing and depositions will be a much large part of legal practice in the post-coronavirus world.
“Now more than ever, technology is a cornerstone of our new abnormal,” Cespedes said.