This article will discuss best practices for defendant’s counsel to follow in representing a corporate client remotely (e.g., via Zoom, GoToMeeting, or WebEx). Increasingly, it is the expectation of courts, both state and federal, that deposition discovery will continue during the pandemic. How can you, as the defense lawyer, fulfill your primary duty of providing effective counsel to the client when the prep is conducted long distance and you will not be able to be in the same room as your client during the deposition? In a document-intensive deposition, how can you ensure that the client is fully capable of intelligently discussing document exhibits that plaintiff’s counsel directs the court reporter to put up on the computer screen during the deposition?
In Covid-19 era, courtesy and civility between adversary counsel is crucial. It may be reasonably assumed that every court requires lawyers that come before it to act professionally. Now, more than ever before, the court does not want its time and resources squandered by having to babysit lawyers who cannot get along during discovery. The ground rules for conducting depositions remotely have to be set forth and agreed to in writing before the deposition is scheduled. The deposition cannot go forward if all participating counsel are unwilling or unable to reach a written agreement. Some negotiation, and some give-and-take by all parties, is clearly required. Agreed upon rules should be established well before the deposition commences.
Fortunately, some courts have adopted reasonable rules-of-the-road for conducting depositions remotely. These pretrial orders may be used as templates by defense counsel because these pretrial orders address some of the obvious issues, and some of the less obvious issues, that can arise. In the 3M Combat Arms Earplug Products Liability Litigation consolidated in the United States District Court for the Northern District of Florida, Pensacola Division (Case No. 3:19md2885), the Hon. M. Casey Rodgers issued a pretrial order on May 13, 2020, setting forth how remote depositions would be conducted in the litigation. The pretrial order does not address the thorny issue of which depositions may proceed by videoconference, a subject that would be addressed in a future order. The protocol established in the pretrial order provides detailed instructions concerning the noticing of the deposition, security measures to ensure confidentiality of the video, audio feeds and exhibits, muting microphones, breaks in the deposition and delays occasioned by faulty technology. Perhaps most significantly, the 3M pretrial order provides rules for the handling of exhibits that will be placed before the witness remotely.
The handling of exhibits in a remote deposition may represent the most significant conundrum for corporate defense counsel. Through long experience and practice, when a document is marked as an exhibit and placed before the witness, counsel and client often collectively bow their heads to review the document placed in front of the witness. Sometimes, defense counsel may want to say “Take as much time you need” to the impatient client who has already devoted the better part of a day to answering questions. This ritual between lawyer and deponent cannot proceed in the same manner remotely. The client is almost always on his or her own once the deposition commences. It is difficult for the defense lawyer, not in the room with the deponent, to urge him or her to take the necessary time to thoroughly review a document and to thoughtfully consider the most appropriate means of responding to the question without it sounding like webcam coaching. In the remote deposition, the client is truly on his or her own. The 3M pretrial order provides that “[d]uring the deposition, full and complete copies of deposition exhibits must be provided to the witness and counsel who are attending the deposition. Deposition exhibits may be made available in physical (hardcopy) form or via the Remote Deposition Technology, file sharing software, or other electronic means. A witness may be required to use a keyboard, mouse, or other similar means to open and/or advance the pages of an exhibit. Access to a full copy of the deposition exhibit electronically via iPad, tablet, laptop, or other devices, will be deemed to equate to hardcopy access.” (emphasis added)
How will this all work in practice? It is too early in the process to say for sure. However, in remote depositions when the court reporter marks the documents and places the exhibits before the witness on the screen, it is often the case that the witness is unable “to use a keyboard, mouse, or other similar means to open and/or advance the pages of an exhibit” as the 3M court envisioned. Depending upon the court reporter’s and the parties’ technology, it may be up to the IT tech for the court reporter to advance the pages of an exhibit for the witness. In these circumstances, particularly with older deponents, it may difficult to read the dense forest of words presented on the computer screen. The court reporter’s IT tech can annotate certain sections of the document to focus the witness’ attention on certain language and to magnify the text, but this does not solve the problem of the witness be able fully read the entire document to fully appreciate the context of the document wording that is the subject of plaintiff’s questions. Therefore, it is crucial that both the corporate witness and defense counsel have all the exhibits in physical (hardcopy) form or via some filing-sharing software in advance. If possible, defendant’s counsel should negotiate an agreement that requires plaintiff’s counsel to mark and provide proposed exhibits ahead of time. This procedure may prevent unwelcome surprises during the deposition. It also serves to keep the deposition on track from a time perspective. If a witness requires multiple breaks (presumably off camera) to review a document that the witness is seeing for the first time, the deposition could take a long time to complete. It is much better for adversary counsel to provide the witness and his lawyer as many of the proposed exhibits as practicable in advance.
The challenge of the remote deposition is even greater if the deposition is being videotaped for trial. In most courts, the videotaped deponent is presented in a head and shoulders shot in front of a neutral background provided by the videographer. What are the images that a jury will see when a videotaped deposition is taken remotely? To ensure that the corporate deponent presented to the jury appears competent and professional, defense counsel must ensure that the deponent’s home or office where he or she is giving testimony has been properly set up. If the witness’ home video camera is positioned incorrectly, jurors may be startled by having to stare up at the deponent’s nose hairs for several hours or, equally distracting, trying to make out the titles of the books on the deponent’s book shelf behind him. If left up to the deponent, he or she may activate a Zoom virtual background that may show the on-screen witness testifying in front of a tropic island beach, not the background image that the corporation defending a wrongful death case may want to convey to the jury. Ideally, a videographer retained by the defendant should set up the deponent’s home or office in person to ensure that the witness has all of the necessary technical equipment present for the deposition to run smoothly and that the appropriate image of the deponent will be transmitted during the deposition. Depending upon the ethical rules in the jurisdiction where the case is pending, it may be helpful to have a second computer set up at the deponent’s location to be able to communicate with counsel during breaks in the deposition and to facilitate document review.
The 3M pretrial order also provides some flexibility in the matter by adding that “[n]othing in this Order prevents a party from moving for a protective order under Fed. R. Civ. P. 26(c) to require that a given individual deposition proceed in person. Further, nothing in this Order precludes counsel for a witness from being in the same room as the witness, if the witness consents and such attendance is consistent with social distancing. Under such circumstances, the party noticing the deposition may still opt to conduct its examination by videoconference”. It is likely that remote deposition practice will vary widely from jurisdiction to jurisdiction depending upon the recommendations of local health authorities and evolve in sync with the public’s response to the pandemic over time.