From left: Andrew Rainer and Juliana Shulman-Laniel
With the advent of the COVID-19 pandemic, lawyers have been thrust into the world of depositions by Zoom and other videoconferencing services. Videoconference depositions present a few advantages, but mostly a host of challenges and “traps for the unwary.” Here is some practical advice for Massachusetts lawyers grappling with this new procedure:
Who Must Attend in Person
One of the few advantages to videoconference depositions is that they eliminate the need for lawyers, witnesses and other professionals to travel to a deposition. Lawyers in different states and time zones can quickly come together to make a deposition happen. Under the current guidance from the Massachusetts Supreme Judicial Court1 — which the court has said will remain in effect indefinitely — court reporters can administer the oath and create a transcript remotely. The only person who needs to be present in person is a videographer, if a video is sought, and that requirement, too, can be waived by agreement of the parties. If counsel agree, many court reporting companies can arrange for the streamed videoconference to be recorded remotely. (Note: Using remote videorecording, but not obtaining this agreement, is a potential trap for the unwary.)
Who Can Attend in Person
The SJC’s order of May 26, 2020, also makes clear that “[t]he desire of counsel, a party, or a deponent to appear in person shall not alone be sufficient grounds to quash a notice for a remote deposition or to refuse to make a witness available for a remote deposition.” In other words, if a deponent wants his or her lawyer to be present for the deposition, but the lawyer is not able to travel to be physically present, that is not, in itself, sufficient reason to delay the deposition. On the other hand, if a deponent wants his or her lawyer to be present, and the lawyer is able to be present, the other side may wish to put in place precautions to ensure that the deponent is not being improperly coached off camera. This can be done one of two ways — by requiring that the deponent’s lawyer be visible on screen during the deposition (with Zoom technology, this can be done during the deposition without that lawyer’s image appearing in the recorded videotape of the deposition), or by insisting that one lawyer for the other side be physically present with the deponent and the deponent’s lawyer during the deposition. Obviously, the presence of two lawyers with a deponent creates issues with social distancing that also need to be addressed (more on this below).
A different question is raised if the deposing attorney wishes to attend in person. What happens, for example, if the deposing attorney wishes to attend in person in order to facilitate the use of exhibits or in order to observe the body language of the deponent, but the deponent’s health or location are such as to preclude the attendance of the deposing attorney? The SJC’s order does not specifically address this question, but the tenor of the order suggests that the preferences of the deposing attorney in this respect need not be honored. Depending on the schedule of the case, the deposing attorney may have the ability to delay the deposition in order to see whether the deposition can be taken in person at a later time. However, if the time for discovery is closing, the deposing attorney may simply have to proceed with the deposition remotely.
How to Decide What Technology to Use
Different court reporters use different videoconference platforms, and when scheduling a videoconference deposition, you should be sure you find out which platform will be used and, if possible, test it out before you finalize your choice of court reporter. Some videoconferencing platforms are based on Zoom, and these are probably the easiest for attorneys and clients to use, particularly given how much people have been using Zoom during the pandemic for meetings and other needs. Other platforms require that participants connect on video and separately by phone. Our experience with this setup has been negative because, if two or more participants are in the same location, there can be problems with echoing, as well as confusion with when people are and are not muted.
Some videoconferencing platforms easily allow for the attorneys to be seen on screen alongside the witness, whereas others only allow one person (the witness) to be seen. Some allow the attorney or an associate to easily control how exhibits are shown and marked, while others require that exhibits be provided to the court reporter in advance. Some videoconference platforms will allow the court reporter to provide a live feed of the transcript, though that feed may be through software separate from the videoconference, requiring a viewer to utilize two screens or devices, or to split his or her screen between the deposition and the feed. If the deposition is being recorded by video, all platforms should allow the videographer to timestamp the image (as required by the procedural rules and thus another trap for the unwary). Some platforms record “chats” made during the deposition; some do not. Each of these issues should be considered when choosing a court reporting service and discussed with the court reporting service you choose.
Doing a Test Run
Even after the videoconference platform is selected, deposing counsel, counsel for the deponent, and any other counsel who anticipate asking questions should try to schedule a test run. Most court reporting services will arrange for a brief one-on-one session with the witness in advance of the deposition to ensure that the witness has the internet connectivity and meets the other technical requirements necessary for the audio-video feed to function smoothly. The court reporting service may also allow for the attorneys to do a pilot run with the software, at which point attorneys should practice showing exhibits, troubleshoot echoes and any other audio issues, and learn how to mute their feed. If the platform is Zoom-based, the attorney and the witness may also be able to practice on the platform by using it in deposition prep sessions.
How to Deal with Exhibits
Exhibits pose another challenge. As previously noted, different videoconference platforms have different tools for the displaying of exhibits. If using a Zoom-based technology, only the lawyer doing the examination will be able to scroll through the document, making it difficult for a witness or the opposing attorney to review the entire document before discussion of the exhibit begins. The lawyer doing the examination may also control how the exhibit appears on the screen but not be able to accurately see how it appears to the witness, making it necessary to communicate whether to enlarge or shrink the image so it becomes readable. Counsel for the deponent should be sure to instruct the deponent in advance to request an opportunity to read through the exhibit or at least to orient himself or herself to the exhibit before answering questions about it. Other technologies allow each participant to view the entire exhibit at his or her own pace, but with these technologies, the exhibits must be loaded in advance or time must be taken to load the exhibit for viewing when it is marked.
Some of the time delays inherent in the display of exhibits can be avoided if the exhibits are shared in advance of the deposition. However, lawyers may have legitimate strategic reasons not to disclose their deposition exhibits in advance. An alternative available in this circumstance is an agreement that counsel will share with opposing counsel all of the exhibits he or she intends to use at the time when he or she begins questioning the witness. If a party is represented by more than one attorney, one of the attorneys for that party can then review the exhibits fully before any exhibit is shown to the witness.
Social Distancing Considerations
If a witness is not comfortable accessing videoconference platforms alone, it may be necessary for someone to be present with the witness to assist him or her. This may be unobjectionable to the other side if the person assisting is not a lawyer. Opposing counsel is more likely to object, however, if the person assisting the witness is his or her attorney, and may insist on being present in person as well. This raises the question, if anyone is going to be present in person with the witness, how do you keep the witness and anyone attending the deposition safe?
The answer is that additional safety protocols should be put in place and ideally should be spelled out in the notice of deposition. First, all persons attending must be free of symptoms of disease, and the number of persons attending should be kept to a minimum. Second, all persons should wear masks and remain at least 6 feet apart from one another — a challenge in smaller spaces. Third, all participants should thoroughly wash their hands upon entry to the witness’ home or deposition location, and throughout the time together. Fourth, all surfaces in the location of the deposition, including heavily used surfaces such as door knobs, light switches, faucets, toilet handles, etc., should be washed thoroughly at the beginning and end of the deposition.
With respect to exhibits, the safest course is for exhibits to be shown to the witness entirely on screen, although this presents the challenges noted above. If any exhibits are going to be handled physically at the deposition, one way to limit the risks is to insist that all exhibits be single-sided and placed on a table in front of the witness (rather than handing the documents to the witness) and then taken back by the attorney showing the exhibit. Another option is to place exhibits in plastic sheet protectors/sleeves, which can be wiped with disinfecting wipes and handed to a witness for review.
What to Put in the Deposition Notice
A good time to think about all of the issues discussed above is when putting together the notice of the videoconference deposition. This will force you to think about the requirements of the SJC order of May 26, 2020, as well as Rules 30 and 30A of the Massachusetts Rules of Civil Procedure, and make sure that you are meeting all of them (such as, for example, the requirement that the videographer be present in person, or that the video be time-stamped). We suggest that you modify the language normally used in a notice of videotaped deposition to reflect the remote nature of the deposition and to specify who, if anyone, will be physically present with the witness and the safety procedures that will protect the witness and any persons present. You may also want to clarify that any statements that the operator must make at the beginning and end of the deposition will be oral, but not necessarily “on camera.” Likewise, the SJC’s order requires that all persons participating in the deposition remotely be identified on the record, though not necessarily on camera. What follows is a model notice for a videoconference deposition taken during the COVID-19 era.
Andrew Rainer is the litigation director of the Public Health Advocacy Institute, and of counsel to the firm of Brody, Hardoon, Perkins & Kesten LLP.
Juliana Shulman-Laniel is a litigation associate at the Public Health Advocacy Institute, where she aids in the representation of individuals in public health litigation.