Taking effective remote depositions
With litigation practices entering the world of remote technologies due to the coronavirus pandemic, counsel should understand the tools and techniques available remotely to conduct effective depositions.
Most court reporting companies offer effective remote capabilities, often through Zoom or Webex. It is equally important to select a vendor that can provide related software through which exhibits may be uploaded, managed, and shared. One such program is Exhibit Share, through which exhibits are preloaded and then, during the deposition, marked and shared with the other participants. But only when the examining attorney decides to share them.
Each participant in the deposition receives access to Exhibit Share. The extent of that access, however, is granted and restricted based upon each person’s role at the deposition.
Each side has its own “Private” folder. This is where the intended exhibits are pre-marked, uploaded, and stored. Because the folder remains private, the witness and opposing counsel cannot see in advance what materials only later will be used.
When counsel is ready for the exhibit, it is introduced by selecting it from the “Private” folder, typing an exhibit number, and publishing it as a “Marked Exhibit.” At that moment, the document appears in the “Marked Exhibits” folder, which is accessible to everyone who has been credentialed and has logged in to Exhibit Share. Everyone — including the witness and opposing counsel — can then view the exhibit and even download it. They may review the document at their own pace and focus on whatever parts they wish.
While everyone then has their own access to the exhibit, another step is useful: once the exhibit has been marked (waiting until then is important, as described further below), someone working with the examining attorney may share his or her screen, using the “screen share” tool. This makes the exhibit visible as part of the video conference, so that everyone simultaneously is viewing the same section of the document. The examining attorney can then further focus attention by magnifying sections, marking the exhibit, or using a pointing tool.
Additional Effective Practices
In advance of the day of the deposition, the court reporter should be asked to provide the necessary credentials and login information to all participants, including the witness, all counsel and parties/corporate representatives, and run a test with the witness.
For a video deposition that will be played at trial, the witness should be instructed ahead of time to be positioned in front of a suitable background. If it is in fact not suitable when the witness appears, time should be taken to find a suitable position and background. Of course, the witness should be requested in advance to appear in a quiet location and ensure the potential for disruptions are minimized.
Counsel should note on the record that the deposition is being conducted under Florida Supreme Court Administrative Order AOSC20-23 (“the Order”) (so long as the Order remains in effect) facilitating and promoting remote proceedings. While the Order authorizes persons qualified to administer oaths in Florida to swear a witness remotely by audio-video communication technology from a location in Florida, the person administering the oath must be able to identify the witness. Therefore, the witness should be requested to present identification.
If the notary or witness is located outside Florida, the consent of the witness to be put under oath via audio-video communication should be obtained, along with the stipulation of counsel to that process.
Counsel should identify for the witness the roles of everyone appearing, including particularly the court reporter and videographer (if the deposition is being recorded for use at trial). The witness should be reminded that, despite the remote setting, the oath has the same effect as any that he or she would take in court or when appearing in person.
The common problem of counsel and witness talking over each other can be compounded in a remote context. The witness should therefore be cautioned to wait until a question is complete, and counsel should do the same when the witness is responding. When defending a deposition with a client in a remote location, the client must be instructed to pause sufficiently to afford time for objection, if necessary.
A particular concern in a remote deposition is the coaching of a witness by someone in the room with the witness. The witness should be asked to state under oath whether there are other persons present and to identify any such person(s). (The exclusion of non-parties and non-essential persons should be sought pursuant to Florida Statute 90.616 – Exclusion of Witnesses.) If the person so identified is also a participant in the video conference, that person should be required to appear on video, rather than by employing a blank screen, so that otherwise improper conduct can be monitored. Indeed, it is arguably appropriate to require anyone seeking to participate, wherever they are, to appear on camera. If coaching of the witness is a real concern, counsel may wish to demand in advance of the deposition that the witness appear alone and, in the absence of such an agreement, seek an order from the court.
To maintain the confidentiality of exhibits until they are used, it is important that the person displaying the exhibit refrain from sharing his or her screen until only the already marked exhibit is on the screen. Otherwise materials in the “Private” folder might be prematurely disclosed. Further, understand that it is everything on the screen that will be shared. So all other programs, such as Outlook, Word, and anything else, should be closed.
Similarly, great care must be taken during breaks to switch to the “mute” function so that any privileged or work product communications — or otherwise embarrassing dialogue — are not disclosed.
The world has certainly changed, and lawyers are adapting like all others. Fortunately, the skilled use of tools such as these promotes the effective questioning of witnesses, even remotely, and without compromising the techniques that make depositions most effective.
Aron U. Raskas is a shareholder in the business litigation practice at Gunster in Miami. He focuses on business disputes and the defense of professional liability matters. Contact him at [email protected].