Over the last decade, and even before, depositions using video became routine. Also, on numerous occasions counsel resorted to deposition by telephone.
Indeed, Md. Rule 2-418 explicitly provides for deposition by telephone. The location of the deposition by rule is where the deponent is located.
Interestingly, Fed. R. Civ. P. 30(b) (4) also provides for deposition by telephone or by “other remote means,” a phrase lacking in the Md. counterpart Rule 2-418 — that is until July 1, 2020. As of that date, we now have a new remote deposition rule parallel to the Federal Rule, along with other important new rules:
RULE 2-418. DEPOSITION – BY TELEPHONE OR OTHER REMOTE ELECTRONIC MEANS
The parties may stipulate or the court on motion may order, that a deposition be taken by telephone or other remote electronic means. The officer before whom the deposition is taken may administer the oath by telephone or other remote electronic means. For the purpose of these rules, a deposition taken by telephone or other remote electronic means is taken at the place where the deponent answers the questions. (emphasis added)
Welcome to the world of the video remote depositions, where the witness, examining lawyer(s), witness’ lawyer, and court reporter are each in separate locations. There may be others (associates, paralegals, technicians, experts, etc.) in the same location as an examining lawyer or court reporter, but it is assumed that the witness will be in a room alone.
This new type of deposition has emerged during the historic 2020 pandemic using various platforms such as Zoom, WebEx, FaceTime, BlueJeans, and others. Learn about these platforms so you can decide which is best for you.
It is likely that the video remote deposition is here to stay, and for good reason. These depositions in the proper situation can be cost-saving to clients and time-saving to counsel’s clients and witnesses. This is not to say that these depositions will replace the traditional depositions, where everyone is face to face in the same room. But they do offer another arrow in the advocate’s quiver.
So how does the remote video deposition work? Numerous courts and organizations have developed guidelines for remote video depositions. One such group is the American College of Trial Lawyers. The College developed “Interim Guidelines on Remote Video Depositions and Examinations for Discovery,”, published June 1, 2020 by the Task Force on Advocacy in the 21st Century. (Some of these guidelines are included below.)
Form an agreement
The first step is to consider developing an agreement among counsel and, if necessary, a court order regarding all important issues relating to the deposition, e.g., the platform to be used, and who will be the manager of the platform. Most likely, the reporting service will have a technician.
Counsel and the video manager should work together to identify issues and resolve them before the deposition, such as issues relating to technology, e.g., screen sharing; marking and displaying exhibits; coordinating the distribution of the video with the court reporter; monitoring for issues of technology; dealing with a participant losing connection or experiencing other technological problems.
Regarding exhibits to be shown to the deponent, they are screen shared. They should be described on the record by counsel or by the witness through questions by counsel as is appropriate.
Send pre-marked exhibits
Prior to the deposition, pre-marked exhibits can be sent to the court reporter and opposing counsel (or the deponent, if unrepresented). This sharing of exhibits can be electronically or by hard copy. But it is important to provide the reporter with electronic copies.
If counsel believes that certain exhibits are better used without sharing them in advance, there are a number of ways to accomplish this goal. Counsel can share documents with the court reporter, then place them electronically in a lockbox with a password that can be used at the time in the deposition when the document(s) are to be shown to the witness. Counsel may need more than one lockbox, if there is more than one “surprise document.”
Still another approach regarding documents that counsel does not want the witness to see prior to the deposition is to send them to all counsel in a sealed envelope and to the reporter as well, with the agreement between counsel that they will not show them to the witness, unless counsel independently reviews the document(s) with the witness prior to the deposition.
Then during the deposition, when timely, the exhibits can be uploaded using the in-meeting file transfer feature of the video platform to all counsel, the court reporter, the video manager, and the witness. If large exhibits are used, they can be shared with the court reporter and of course opposing counsel in advance per agreement.
Discuss enhanced platforms
Many reporters have specialized video platforms that permit enhanced document markup, X-ray and MRI markup, importation of maps, various recording capabilities, touch display, etc. A discussion about which video platform will be used by the parties may include a discussion of this type of enhanced platform.
Other remote deposition issues to consider and resolve by agreement include who should be on camera during the deposition, and who can be in the same room with the deponent. Also, others who may be attending the deposition should be on mute.
Consider also whether a deponent may send or receive electronic messages relating to the deposition while being deposed or on recess. What about whether the deponent may consult social media during the deposition or recesses?
Also, resolve if and when the deponent may consult with counsel. Certainly, rules of procedure apply, and counsel are ordinarily prohibited from talking to the client or witness during the deposition and recesses, except on the topic of identifying whether a privilege applies.
Consider arranging for everyone, including the deponent, to keep a phone readily available to receive a telephone call in the event of a technological interruption during the deposition.
While I do not pretend to address every issue here, I trust I have alerted you to some of the important ones, and one source to consult.
Each video remote deposition will present its own issues. The key to resolving them is the high level of professionalism and cooperation for which the Maryland Bar is known.
Paul Mark Sandler, trial attorney and author, can be reached at email@example.com.