“Deposition Distancing”: Practical Considerations for Defending Remote Depositions

Lawyers continue to work during the COVID-19 pandemic.  As we discussed in a previous post, for litigators this may involve participating in remote depositions as courts attempt to keep discovery moving. We also provided tips for lawyers taking remote depositions. With thanks to our Faegre Drinker colleagues who have ventured into this new world and shared a great deal of useful advice with the authors, here we discuss some of the practical considerations for lawyers defending remote depositions.

Preparing your witness requires that you cover all the usual issues – plus those unique to remote technology. For example, you normally would advise the witness not to bring notes or files, but for a remote deposition it is also important to remind the witness not to look at, or offer to look things up for the purpose of answering by using, e-mails or files on his computer or phone, or information available at the Internet.  (That actually happened in a recent deposition.) Tell your witness to turn off the phone, close browser windows on the computer, disable chat or text alerts, and otherwise shut down other technology that might be distracting.

Determine what consultation is permitted during the deposition or at breaks, and make sure you have arrangements to consult privately. Some vendors have technology that provides a separate “virtual room” for lawyers, witnesses and co-counsel to caucus – but be sure you know how to use it, so you don’t inadvertently share your discussion with the other side. (The lower-tech solution is to have the witness move physically to another room and call you on the phone – but make sure you mute your audio for the videoconference platform, again so the other side can’t overhear your discussion.)

When giving the usual advice to pause before answering, emphasize this is especially important in videoconferencing because of the brief “lag” sometimes experienced with the technology.

As with any deposition on video, you will advise your witness about appropriate attire, facial expression, body language and so forth. But for a remote deposition you will need to work with the witness on other “appearance” issues in videoconferencing, such as:

  • Choosing a quiet environment away from extraneous noise (if the testimony is given from home, make sure the children and dogs are elsewhere).
  • Placing the witness to be seen clearly (e.g., not sitting with her back to a bright window so she is lit from behind and her face appears only as a shadow).
  • Choosing a background that isn’t distracting or inappropriate. (You want the jurors listening to the witness, not reading the book titles on the shelf behind him, admiring his garden through the window or focusing on an unmade bed.)
  • Placing the camera so the jury isn’t looking up or down at the witness or otherwise seeing her from an odd angle (remind the witness to stay in a good position in relation to the camera and not lean in or away or cover the lens; if the witness is using a portable webcam perched on top of a monitor, be alert to the witness “falling out of frame” and alert her to reposition if needed).
  • Maintaining poise and composure, especially when there are technology “glitches” (the best advice is to imagine an audience sitting in the room watching at all times).

When preparing a witness for remote deposition – especially if the preparation is done remotely – extra time and effort may be needed to make the witness comfortable with the process. Start well in advance of the deposition date and set aside more time for preparation than usual.