A Litigator’s Guide to Remote Deposition Basics
By: James B. Drimmer, Esq.
U.S. Legal Support
By now, the COVID-19 virus has caused major shifts in our daily lives, from personal interaction to the way we conduct business. The technological capability to work virtually through web-based meetings and conferences is moving at full speed to support many industries that previously eschewed such technology in favor of an in-person meeting—depositions, in our case. For litigation attorneys, it is time to get with the times; in fact, it is already past that time.
There is no doubt that, by now, you have been provided with information by your litigation support services provider, including our company, U.S. Legal Support, about the ability to conduct remote depositions. This is exciting news for all of you, as litigators, to be able to proceed with what we feel is ultimately the most important part of the discovery process: the development of your case through the sworn testimony of a witness at a deposition. Yes, we can do this!
The somewhat infrequently used remote deposition will quickly become ubiquitous. As practitioners, we will need to develop agreed-upon processes and procedures to follow at remote depositions that will be prescribed either by custom, statute or court rule. But in the meantime, it is helpful to bear a few considerations in mind to make your deposition run as smoothly and efficiently as possible.
WORK IT OUT WITH OPPOSING COUNSEL
Make sure you are in communication with opposing counsel and the witness in terms of agreeing on conducting a remote deposition. This may seem obvious, but there are details to be worked out, such as timing of the proceeding for parties, witnesses and counsel located in different time zones; agreement on the admissibility of the deposition (U.S. Legal Support’s reporters will perform a read on stipulation at the beginning of each deposition); which platform will be used; and who will bear certain costs.
For example, depending upon which service you choose to conduct your remote deposition, merely attending the deposition “virtually” may come with some added costs for the witness, opposing counsel, etc. If a third-party witness needs equipment to be shipped to them to partake in the remote deposition, who is paying for that? Be sure that these issues are worked out ahead of time, so there are no surprises.
DON’T IGNORE THE TEST CALL
As is true with U.S. Legal Support’s RemoteDepo™ offering, most providers offering remote depositions services will send all attendees an email invitation to perform a test call. During this call, you will have the opportunity to make sure your internet service is sufficient for the remote deposition, ensure that your device will work, ask questions, and possibly even test some of the functions. If you take advantage of this opportunity to make sure everything will run smoothly, you will be able to participate with confidence. Remember, test the specific equipment you intend to use and at the location you intend to be when participating in a remote deposition.
SOME CONSIDERATIONS TO THINK ABOUT WITH EXHIBITS
The best practice for dealing with exhibits is to have them scanned in PDF format, and in a folder dedicated to the deposition on your computer’s desktop. With RemoteDepo™ and InstantExhibit+™ by U.S. Legal Support, you can drag and drop the exhibits into your remote deposition, introduce them during the proceeding, utilize a managed ongoing repository and publish them to all parties and the witness.
If possible, name document exhibit files using a description of the document, so that you can quickly search for it without having to open up multiple files to find what you are looking for and put your exhibit files in numbered order before introducing them. Some software (Acrobat Pro) permits you to quickly make an exhibit sticker yourself. If you prefer to leave it for the reporter to take care of, that is fine as well. If you wish to have a paralegal or other support staff attend virtually and manage the exhibits during the deposition, that can be easily arranged.
You should also give some thought to how you might handle third-party witnesses, who will show up with documents to their deposition; these may include, for example, a police officer with a report or his notes or an expert witness. It will be incredibly helpful—if not absolutely necessary—to have those items in electronic form in advance of your remote deposition.
Finally, U.S. Legal Support’s InstantExhibit+™ product is an ideal solution for multiple depositions and complex litigation matters, where all of the exhibits in a case can be organized in one place. Parties will be given permissions to manage and organize their own documents privately until they are introduced during a deposition. Call U.S. Legal Support for a demonstration of this or any other product or service related to remote depositions.
GIVE ME A BREAK
Taking a break during a remote deposition is the same as taking a break during a normal deposition, with one thing to keep in mind: you are potentially still on camera and can possibly still be heard. If you are having a private conversation, make sure that your phone and computer audio are muted and that you are off camera. Attorney-client conversations or discussions that are intended to be private with co-counsel should be handled outside the presence of this public video and audio, completed through either the private chat functions included with the service or completely off-line through your personal devices.
RECORDING THE CONFERENCE – DO I NEED A VIDEOGRAPHER?
Most services providing remote depositions will allow you to make a video recording of the proceeding. If you intend to use this recording at trial in lieu of a videotaped deposition, you may want to consult with your provider as to just how to accomplish this. For example, if you want a recording of just the witness, you should make this clear, so the recording focuses only to the witness’ face.
At least in California, under CCP 2025, there are rules for a legal videographer to make very specific read-on announcements during the proceedings to make sure the work product is easily identified. Query whether the lack of such formalities would make such a video recording inadmissible. The safest play would be to have a legal videographer record the proceedings. They can even reach out to the witness and discuss backdrops and other issues to ensure a usable video product at trial.
As everyone settles in and becomes familiar with the process, we will make further recommendations on our website and in our collateral. Stay tuned.