Pandemic Depos: Working remotely means taking depositions remotely

Martin Schubert, Esquire
July 27th, 2020
By: Martin Schubert, Esquire

In these difficult times, cases continue being filed, deadlines continue to approach, and the Supreme Court of Virginia has allowed discovery to proceed. In order to keep the cases, clients, and adjusters on track with their cases, the attorneys at Bancroft, McGavin, Horvath & Judkins, P.C. are using platforms such as Zoom and Webex on a near daily basis to conduct depositions. We have prepared processes for presenting exhibits to witnesses, best practices for taking the depositions, processes for avoiding unfair or improper conduct by deponents, and even customizing the deposition notices to ensure a fair, reasonable, and effective process.

While we are prepared to proceed, not all practitioners are embracing the remote deposition to the same level. The Rules of Court expressly allow for remote video depositions, but the application and implication of such depositions are varied. Most practitioners have not had to deal with the considerations presented, at least not in a large scale fashion, at any point in their career. Some still oppose or outright refuse to participate in remote depositions, which depending on your case’s timing, may require a motion to compel it remotely.

One thing is clear, it is an ever evolving landscape. Initially matters were shortly postponed in hopes of the pandemic lightening. Then the majority flocked to Zoom, only to learn of security issues. Those seem to be resolved and lawyers are getting used to the idea of taking depositions from their home or office, without being physically present. New considerations may be that the depositions can occur, but the trial will be a year away. Perhaps the deposition will be stale by that point. Strategy may dictate waiting if discovery is likely to change, such as where medical treatment continues.

Once it is agreed to proceed, there are various issues and considerations. First, where will the witness be and how should the subpoena be phrased. Compel them to appear at a website, an empty office, or your office with an explanatory letter? There is no right answer, but it is a best practice to put the party at ease and ensure maximum likelihood of success by giving as much information as possible. Advise the witness to stay in a comfortable private space. Advise it may be taped and to act and dress appropriately.

One continuing issue in remote video depositions is the videotaping itself. There can be confusion by noting a remote video deposition. Does that mean it is also videotaped for later use or not. Then, further confusion is created when it is videotaped for reporter backup purposes, as opposed to de bene esse purposes. In the end, the best thing to do is to ask and get an agreement of all counsel in the deposition before starting.

During the deposition, examining counsel should request the deponent identify what materials are present in front of them. Counsel should instruct the witness not to communicate with anyone. Counsel should confirm at the end that no chat function was used with anyone. Pay attention to what the witness does. Are they looking around or appearing to read something on a device? That is probably a red flag. Confirm with counsel that they have not communicated with the witness during the deposition. Know how to share your screen so you can use pre-prepared exhibits with the witness. Ask the witness to confirm they can see the document and walk them through the parts they should focus on by pointing, clicking, or highlighting. In the end, make sure to email the exhibits to the reporter to include with the transcript. In the alternative, the court reporter company may have a technical specialist who can put the exhibits on the screen for you.

With a little patience and practice, remote depositions can be as useful and certainly safer, under these present circumstances, than the traditional deposition in person.

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More