Reflections, suggestions on conducting a virtual deposition

In the past few weeks around the country, a number of virtual depositions have taken place in which all parties, including the court reporter, have been at different locations.

While this has been an invaluable addition to a litigator's toolbox during this time of enforced social distancing, there are several important areas to be assessed in preparing for a virtual deposition.

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Which program to use

There are many different programs that can be used to accomplish virtual depositions, and which one to use depends greatly both on your needs and the programs used by your preferred court reporters.

While various sites have been used in the past weeks, there have been serious concerns with reported hacking. In recent weeks, the FBI issued a privacy and security warning on this risk known as "zoombombing."

Regardless of which program is chosen, all should have the option of requiring a password in order to enter the virtual deposition to protect the integrity of the meeting and the privacy of those involved. It goes without saying that your court reporter should "test drive" all devices in their respective locations in the days before the deposition to iron out issues with WiFi connections.

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How to handle exhibits

There are primarily two options: having your court reporter display the exhibits to all parties simultaneously, or having the examiner display them from his or her own device. The type of exhibits, number and pages involved will dictate which works best for your particular deposition and your level of comfort with technology.

Video and audio exhibits may be best handled by the court reporter. Physical objects may be better displayed by the examiner. If your exhibits are solely documentary, then your best choice lies with the number of exhibits and pages.

Displaying specific pages or photographs up to the device's camera in real time can be efficient for a smaller amount of exhibits, shorter exhibits, or exhibits that were not anticipated beforehand. However, a document-heavy deposition would make that too unwieldy, and consideration should be given to providing all exhibits to the court reporter and deponent's counsel to be pre-marked and downloaded.

For instance, the Cisco Webex program can display documentary exhibits on the screen for simultaneous viewing by all parties with the help of the court reporter. While this may give an advantage to deponent's counsel in their preparation, the alternative could be awkward and time-consuming.

The use of document-sharing programs is also an option, however, this may be difficult for less tech-savvy counsel and deponents.

Lastly, in depositions in which the deponent/designee is instructed to produce documents, the practitioner should consider requiring the documents to be provided electronically on a date and time certain before the deposition.

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A/V depositions

Most virtual meeting programs have a feature that allows for the recording of the session without the need for additional equipment or personnel, which would reduce the overall cost of the deposition service.

However, regardless of what is chosen, it should be made clear at the beginning of the deposition, before testimony is taken, whether the deposition will be audio/video-recorded, or only conducted with audio/visual communication according to the SJC order.

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Location of the deposition

In a traditional deposition with all parties in the same room, the location of a deposition is obvious. With a virtual deposition, however, this is undetermined.

Telephone depositions assigns the county where the deponent is as the location of the deposition. That may become an issue in the relatively unusual occurrence of the need for judicial intervention if it is a county that is far from the practitioner's locale, and more so if the deponent is located in another state.

Best practice would be to stipulate the county of the deposition beforehand, and if necessary that the deposition is subject to the laws and court rules of your state.

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Representing the deponent client

In addition to the preparation that would go into prepping a client for a deposition, a few additional items should be covered. First, counsel needs to ensure the client will be sitting in a quiet place where he or she will not be interrupted or influenced while testifying.

Second, counsel should take particular care to advise clients on how to handle objections by counsel. Depending on the program and the WiFi connection, the sliver of a moment between a question and an answer may be shortened or delayed.

Lastly, preparation should include a "Plan B" for instances in which private attorney-client conversations need to take place. While most virtual meeting programs have a mute function, they vary from system to system. To avoid any inadvertent witnessing of privileged conversations, one should consider other options such as telephone calls in another room to ensure privacy.

The use of a stipulation can manage any of the issues raised above or by one's individual case. Any stipulation should be discussed and drafted well in advance and marked as an exhibit.

This is truly the wave of the future and one that should be embraced fully. Virtual depositions will allow for lawyers to move cases forward without extended pandemic-related delays. They will also allow for non-deponent clients to witness these depositions more easily.

The technology is simple to learn and use and will someday become as commonplace as the use of email.

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Amy J. Galatis is a litigator who specializes in medical malpractice defense at McCarthy, Bouley, Barry & Morgan in Waltham. With the help of Allyson Pollier and Jessica Galarneau, of Superior Court Reporting, Inc., she conducted one of Massachusetts' first virtual depositions of an opposing party in which the parties were respectively situated in three Massachusetts counties and the state of New Hampshire.

Published: Mon, Apr 20, 2020