In spite of social distancing requirements established by the COVID-19 pandemic, courts are now more likely to expect that litigants have been diligently keeping up with various pretrial tasks. While remote depositions are not a new aspect of litigators’ practice, the COVID-19 pandemic has forced many to adopt this previously underutilized aspect of discovery proceedings. Wolf Greenfield attorneys have experience with taking and defending depositions in such a remote format. We’ve reflected the insights they gleaned from their preparation for and participation in these remote depositions below. Remote depositions are a cost-effective and timely solution to the question presented by widespread social distancing measures. In a post-pandemic economy, such financial considerations may be of the utmost importance to clients and attorneys alike.
BEFORE THE DEPOSITION: PRACTICE MAKES PERFECT
Whether taking or defending a deposition, the most important aspect of an attorney’s success comes down to their ability to practice and become familiar with the virtual format. While being physically present for depositions may fall within an attorney’s comfort zone, such times call for a more flexible approach. The conventional format allows parties to organically read the temperament or condition of a witness. While there will never be a substitute to this component of in-person depositions, remote alternatives satisfy the elements of discovery without losing a total sense of tone and context on behalf of the witness. Accordingly, conventional strategies for regulating cadence, ensuring clarity, and communicating tone will still have a place in remote depositions. Ultimately, the level of familiarity that an attorney has with their technological platform plays a vital role in their ability to adjust to this new virtual stage.
Beyond taking the time to test out specific software, IP litigators should work with opposing counsel to find an acceptable platform for conducting the deposition. As attorneys gain experience in their remote working environments, they may develop familiarity with specific software programs. In the absence of court mandated software policies, it is important that all parties agree on using a single platform that is acceptable and amenable for the needs of all involved. Specifically, distinct platforms may utilize different mechanisms for presenting exhibits and sharing screens. The time to work through any technological hurdles is always well before the date of the actual deposition. Open and candid conversations with opposing counsel will go a long way towards addressing any concerns that may emerge at this point of the litigation.
Further, it remains sensible for attorneys to work directly with their witnesses to ensure that their level of comfort and familiarity with the software is sufficient for all depositions. Given that witnesses will have the opportunity to join remote depositions from the safety of their own home, it follows that they should also be prepared to navigate the selected deposition platform. Scheduling a time to work through how exhibits will be displayed can help optimize success during the actual deposition. As part of these preparatory sessions, litigators should ensure that they take the time to vet and test the equipment they intend to use for their deposition needs. Issues relating to improper sound, audio interference, unclear visuals, or weaker internet access are best addressed before the day of a deposition.
ACCESS TO EXHIBITS AND CLARITY IN PRESENTATION IS VITAL TO SUCCESS
As noted above, depositions are crucial for generating the record that IP litigators will use to craft persuasive arguments. To that end, use and presentation of exhibits are essential – and perhaps magnified – during the remote deposition. Beyond providing access for their witnesses, litigators should ensure that they are also providing court reporters with appropriate access to critical exhibits. Whether attorneys choose to project their display so that a witness may follow along within an exhibit, or if they choose to send physical copies of the exhibit to a witness, documents should always be explicitly identified for the record. Accordingly, witnesses should be instructed to take their time with exhibits and carefully inspect relevant portions. With so many variables presented through the virtual format, attorneys should strive to create a clear and precise record using all available tools at their disposal.
THE NUANCES OF TECHNOLOGY IN REMOTE DEPOSITIONS
In many ways, the mechanism of participating in depositions remains unchanged. Attorneys are still responsible for generating a comprehensive record with an eye towards accuracy. Irrespective of any logistical hurdles and differences between the remote and in-person format, the essence of the proceeding will still be something familiar to most seasoned IP litigators.
One disadvantage of remote depositions for the taking attorney is that the witness will be physically out of reach. Normally, it might be easy for an attorney to identify whether a witness is being coached during their testimony. In these remote depositions, the virtual format can make it harder to ensure that there is no component of guidance being offered by the defending attorney. To this end, an attorney taking a deposition should begin by confirming that the witness is alone and unable to receive guidance during their testimony. Any chat features between attorneys and the witness should also be monitored to prevent illicit coaching. Ensuring that the record reflects an honest account of provided testimony will go a long way towards achieving conformity between the virtual and in-person deposition format.
Conversely, an aspect of remote depositions that can be particularly helpful to all litigators is the ability to communicate with one another while the deposition is in progress. If a platform allows, a similar chat function between counsel can guarantee that everyone is being heard and that the technology is functioning in an appropriate manner without burdening the record.
One disadvantage of remote depositions for the defending attorney presents itself in the inherent struggle to interject with objections. While the witness is providing testimony, it may be hard for them to hear or see visual cues that their attorney is attempting to object. The best solution for addressing this concern is simply to practice and develop a rapport and sense of familiarity for the witness. Otherwise, such challenges can represent a defect in the remote deposition that might not be as prevalent in conventional deposition settings.
LOOKING AHEAD: REMOTE DEPOSITIONS AFTER COVID-19
Even as states across the country begin to relax their social distancing measures, it remains unclear what a post-pandemic legal world will look like. As judicial proceedings have increasingly become more virtual, it is likely depositions will also trend in a similar direction. As courts have adopted remote hearing procedures and oral arguments are conducted telephonically, the expectation will be for litigators to find remote solutions for their pretrial needs. The remote deposition mitigates the need to travel without sacrificing much in the way of substantive functionality. By coordinating through technological platforms, attorneys may conduct remote depositions even from the comfort and safety of their own homes. Without the need for burdensome and costly travel times, clients may be more willing to consider remote depositions as a cost-effective solution for their litigation needs. Even in a world where traditional depositions are deemed safe, litigators must be ready to navigate the continued reliance upon remote depositions.