Trial outcomes often hinge on witness testimony. Attorneys collect much of this testimony during a formal process called a deposition. A critical component of discovery, depositions traditionally occur in law offices or designated courthouse rooms, without judges present.1 Although due to recent improvements in digital communication (and on the heels of the pandemic), many litigators now prefer to conduct depositions remotely. This reduces costs, saves time, and streamlines the process.
However, given the growing sophistication of cyberattacks, safeguarding the confidentiality of remote testimony poses a daunting challenge.
Formally, a digital deposition proceeds in the same manner as a traditional deposition. Attorneys question witnesses, present exhibits, and enter testimony into the case record.
For remote depositions, the entire process occurs within a videoconferencing platform,2 allowing for enhanced flexibility and location-independent access.
Remote depositions involve the same parties as in-person proceedings. These parties include:
On the remote deposition date, each participant logs in from their home or office, using their personal devices and internet connection.
If you’re slated to host or participate in a remote deposition, observe the following best practices to ensure privacy and security.
First and foremost, litigators should utilize a reputable, secure platform. When weighing your potential remote deposition partners, make sure their programs feature:
Since testimony may involve the disclosure of Protected Health Information, you’ll also need to verify your provider’s compliance with Health and Insurance Portability and Accountability Act (HIPAA) standards.
In addition to security, make sure that your chosen remote deposition platform features a user-friendly interface and easy access (ideally through email links). You’ll also want to verify that your service offers live technical support during the deposition—this can salvage a proceeding if unexpected issues arise.
SOC Type 2, shorthand for “System and Organization Controls Type 2”, offers an elevated set of standards for the transmission and storage of client data.3
Initially developed by the The American Institute of Certified Public Accountants, SOC 2 rests on a foundation of five Trust Services Criteria4:
When choosing a provider for your remote deposition, you should verify that they’ve undergone a third-party SOC 2 audit. Successful compliance with SOC 2 standards signifies exemplary security measures and adherence to the five vital trust services criteria.
Before holding any remote proceedings, request an attestation from the platform’s SOC 2 auditor and ensure that they meet or exceed all required benchmarks.
While a top notch platform is paramount, even the most ironclad providers must transmit information via the internet. A poorly guarded network can expose sensitive information to nefarious actors.
Request that all participants utilize an internet connection that is:
It’s also wise to employ a VPN (Virtual Private Network) for additional security. A VPN funnels all information through a private server.5 As it does, it scrambles this information, rendering it indecipherable to would-be hackers. While VPN usage isn’t a strict requirement, it lends an additional layer of armor to online proceedings.
In-person depositions, conducted in court conference rooms or attorney offices, pose little risk of eavesdropping, accidental or otherwise.
Remote depositions, on the other hand, amplify the odds of information leaks, especially since all parties will dial-in from distinct locations.
Before holding any virtual meetings, remind participants to set up in a secure, private location (such as a home office or bedroom) where clandestine recording or eavesdropping is unlikely to occur.
Participants should avoid screen-sharing or using other devices (such as personal cell phones) during the process. It’s also advisable to remove or turn off any voice-activated household devices, such as Alexa systems.
Depositions frequently involve exhibit sharing and storage of confidential records. To protect their contents, implement a set of strict procedures for handling sensitive information.
All participants should:
You should also keep all confidential documents on a “need-to-know” basis. This prevents unnecessary sharing and potential exposure.
If anyone involved in the deposition, especially a witness, is unfamiliar with remote document transfer, conduct several file sharing tests before transmitting sensitive information. This will permit all parties to familiarize themselves with the process.
To minimize inadvertent security issues or protocol breaches, it’s wise to schedule a “dress rehearsal” before launching into the formal deposition. This will help flush out potential issues and elevate comfort levels for all participants (ensuring a more profitable deposition overall).
Dress rehearsals should include:
Since digital fluency levels vary between individuals, a thorough walkthrough allows everyone to get up to speed and sort out snags. Anxiety about platform complexity or security policies may lead to ineffective or unusable testimony, which benefits no one.
To ensure compliance, it’s also wise to outline these best practices with participants beforehand. This gives everyone a chance to assess factors like their personal space, internet connection, and device compatibility.
Given their digital nature, online depositions have inherent security risks. However, attorneys can ensure data privacy by observing strict protocols.
But digital depositions also pose a few broader challenges.
Once you’ve established your security approach, take the following remote deposition best practices to promote overall efficiency and productivity:
During a remote deposition, you’ll likely take several breaks. It’s crucial to remember that, although the formal proceedings are on hold, you may remain audible and visible.
Always mute your mic and turn off your camera before engaging in private conversation. Conduct any attorney-client communication through personal devices or private chat. Close any unnecessary windows or browsers during the deposition proceedings.
If current trends hold, remote depositions will remain the dominant format for decades to come. Make this paradigm shift work for you and your team: leverage U.S. Legal Support’s all-in-one remote deposition tool, RemoteDepo Pro.
Crafted to streamline and safeguard online court proceedings, RemoteDepo Pro delivers a comprehensive suite of tools to ensure ironclad security. In addition to full SOC Type 2 and HIPAA compliance, it features state-of-the-art encryption measures and stringent user authentication protocols.
Within these fortifications you’ll find a host of additional benefits geared toward a seamless deposition experience, including: live speech-to-text transcription, on-demand technical support, and private sidebar capabilities.
For further security guidance, consult our Remote Deposition Cybersecurity Checklist.
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Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information. The information provided in this blog is for informational purposes only and should not be construed as legal advice for attorneys or clients.