By Amy Groff and Dean Brower
The COVID-19 pandemic has forced those in the legal profession to transition to a virtual world in many respects. One example of this transition is conducting remote or “virtual” depositions. Given the expediency and efficiency of virtual proceedings, we are likely to see the continued use of virtual depositions after the pandemic ends. While virtual depositions present certain challenges, they are also time- and cost-effective.
Conduct a trial run
Practicing the process before the deposition will ensure that each party’s computer works and that there are no technological or internet problems. During the trial run, it is important to go over key tips for virtual depositions, such as having the witness take several seconds before responding to questions to avoid talking over others and to give counsel time to raise any necessary objections. Instruct the witness that there may be a lag, and practice going over questions to establish a rhythm if that makes the witness more comfortable. In depositions with confidential documents or information, it is important to make sure the deposition platform has adequate security features.
Because WebEx and other virtual platforms use Internet bandwidth, the witness might want to call in using a cell phone for the audio, using the computer for only the video, so that they are not using Wi-Fi bandwidth for the audio portion. At the outset of the deposition, ask the witness to confirm on the record that there is no one else in the room, and consider having the witness show their surroundings on the camera to ensure that the witness is not under any outside influence during the deposition. Because different jurisdictions have different rules regarding depositions, counsel should also decide and state on record which jurisdiction’s law will apply if it is not clear.
Since parties and counsel are participating from different locations, it is important to make sure the witness is not referring to another document or being coached remotely about answers to give during the course of the deposition. Ask the witness to have a clear desk and not to use the computer for anything other than the deposition connection. When taking the deposition of the other party’s witness, ask these questions on the record and expressly instruct the witness not to open any other windows on the computer and not to communicate through email, instant messaging, or other features during the deposition.
Take advantage of virtual depositions
Although virtual depositions may raise novel challenges, they can be less time consuming and less costly for all parties. Virtual depositions eliminate the need for travel, which can be a significant expense. In addition, during the pandemic, where witnesses would be required to wear masks during in-person appearances, virtual depositions allow counsel to see facial expressions and better evaluate witnesses’ credibility and how they will come across at trial.
Amy Groff is a partner at K&L Gates. Her practice involves employment law, general civil and commercial litigation, and appellate work. Her employment law practice involves representing employers before administrative agencies, in state and federal trial courts, and on appeal. She also provides advice on employment-related issues and drafts policies, procedures, and agreements. She can be reached at firstname.lastname@example.org or (717) 231-5876
Dean Brower is a recent graduate of the University of California, Berkeley School of Law and is an associate at K&L Gates in the environment, land and natural resources practice group. He can be reached at email@example.com or (717) 231-4514