Depositions

With Court Authorization, Litigators Discover Remote Depositions

Laurie Berg, a court reporter in New Hampshire, reminded me that in 2014 she received certification for a new software program for introducing exhibits electronically. She used it for the first time on April 1, 2020 when taking a remote deposition over Zoom.

Remember early 2020? The holidays were over, the calendar had turned to a new year. Quiet offices were bustling again after being paused for a bit. Routines of work, school, family and other obligations were clicking back into place.

Until they weren’t.

That fantasy, the one that goes, “wouldn’t it be great to work from home and skip the commute?” was fantasy no longer. The COVID-19 pandemic compelled the shift to work-from-home for businesses that could do so, like law firms. For the foreseeable future, it’s the way we work now.

I’m reminded too of my column from 2014 about the end of the paper chase, thanks to electronic exhibits, which streamline depositions—whether remote or in-person. Technology from eDepoze and other providers                is catching on now. Upload two or 200 exhibits beforehand, show and mark them only when the deposition            gets underway, and at the end, preserve them with the transcript.

Jurisdictions throughout the country have said discovery must continue. Litigators are obliged to maintain a deposition schedule absent the familiar setting of a conference room. Court orders allowing stenographers           to swear in witnesses without being in their presence effectively disallow motions to postpone.

Over the past few weeks, my team and I have checked in with several litigators in the Boston area whose practices are national and international in scope about how they’ve adjusted to remote depositions.

There is a consensus:

  • The transition has gone unexpectedly well.
  • Court reporting agencies and court reporters have been instrumental for training and tech support.
  • Electronic exhibits are a game-changer.
  • Attorneys are gracious, willing to learn and help one another.
  • After the pandemic, whenever that is, remote depositions will not go away. There are too many advantages.

Making the Transition

Webinars, small group and one-on-one prep sessions acquaint litigators with best practices for effective remote depositions, bringing a comfort level to all participants. Here’s what attorneys—and court reporters—say about conducting depositions from their respective home offices.

Shepard Davidson, Partner, Business Litigation Group (Burns & Levinson, Boston), recalls some frustration early on when courts shut down. “After a few weeks, it was clear that the crisis was for the long haul. Although I could not move my existing litigation, new disputes were coming up every day. I even proposed a deposition by Zoom, but the other side would not agree. Because there were no rules in place, I could not even move to compel.”

Now, however, a party cannot object to a remote deposition.

“Before the pandemic, I would have thought doing a deposition this way would be inferior to doing it in person.” Having conducted a number of depositions remotely, he sees it differently.

“Lawyers don’t like change,” Davidson remarked, not excluding himself. “Before, I would never work from home. It was too difficult to get in a frame of reference where I could focus. It was easier to go into the office. Now I have options and I’m much more open to using technology in situations where I never would before.”

He’s not alone. “Attorneys who have been practicing for 40 years and have been doing it the same way realize            we’ve got a new set of circumstances. This is how we’re going to do it,” said Davidson.

Charla Bizios Stevens, Chair, Employment Law Practice Group (McLane Middleton, New Hampshire and Massachusetts), has not taken an in-person deposition since March. She was familiar with Zoom and other videoconferencing platforms even before the pandemic, since her group uses it for intra-office meetings.

But clicking on a link for a deposition was new.

“In the spring, litigation was quiet for a month or two. Then it became evident that we were going to be working from home this way for a while,” she recalled. “We needed to get back to it and schedule depositions.” Skype, which she had used occasionally, was not optimal.

After participating in a few Zoom depositions defending, not taking, she saw little downside. “It’s working fine,” Stevens said. “I don’t feel as if I’m missing a personal connection, and with breakout rooms, we are able to communicate with clients confidentially.” Like anything new, “marking electronic exhibits took getting used to,   but now it’s seamless,” Stevens noted.

Michael Sullivan, Partner, (Prince Lobel, Boston), similarly recalled that when work-from-home would be prolonged, it was imperative to “figure out how to take depositions remotely,” especially since important ones in a big overseas case had been put off for months. “The court made it clear that the case couldn’t wait forever. There were discovery deadlines, and if people couldn’t fly, remote depositions were the only way around it.”

Still, Sullivan wanted to avoid giving witnesses an advantage by sending exhibits beforehand. He found screen-sharing cumbersome for viewing a PDF or Word document. “It doesn’t allow two people to look at a specific portion of the exhibit at the same time,” he noted. The combination of Zoom and a platform to introduce exhibits electronically on-the-spot resolves the issue, and supports an efficient comprehensive digital workflow.

Coordinating with Court Reporters

Let’s remember, court reporters are also working from their homes. No carrying steno machines and laptops to conference rooms around town, except on very rare occasions. In-person depositions during COVID-19 present    a number of public health compliance issues.

In 30 years, Susan Lozzi of Salem, Mass., had done a handful of telephonic depositions from her home. Now, after a lull in the spring, she is regularly covering videoconference depositions without ever filling the gas tank.

And Laurie Berg in New Hampshire is making good use of that electronic exhibit certification she earned six years ago.

Getting Situated

Before starting a deposition, attorneys agree to updated stipulations read into the record, allowing the reporter to swear-in the witness remotely. Both Berg and Lozzi find that their preparation for remote depositions with us here at O’Brien & Levine helps them help clients.

Berg acknowledges that depositions over Zoom are still new, and there is some hesitancy. She covers all the connectivity aspects and goes over the differences between in-person and remote depositions—especially reminding the parties to speak one at a time.

“We ask the same for regular depositions, but on Zoom, it is imperative,” Berg said. “If someone else starts speaking, it cuts the audio out. I’m going to have to interrupt to get an accurate transcript.”

“Reporters never like to interrupt,” Lozzi added. “Yet at times it’s unavoidable. If we don’t hear something or it’s garbled, it’s not like we can play it back. There’s nothing to listen to.”

Still, Berg and Lozzi find that attorneys are patient and flexible, and witnesses are cooperative as everyone adjusts to remote protocols. Appreciation for electronic exhibits is clearly evident.

“eDepoze is easy to use,” said Berg. “I give the attorneys some tips. You don’t have to be tech savvy. At the first deposition for a big case recently, one attorney was a little intimidated. A couple of depos later, she was showing everyone what to do.”

Lozzi finds that attorneys who are initially wary of remote deposition technology come around once they become familiar with it. “Out of the blue, an attorney asked me how I liked Zoom. I told him that, sure, it was different at first, but now, the efficiency can’t be beat. He agreed, and believes that litigation practices will continue to schedule depositions this way when there are no longer restrictions.”

Remote Depositions: Post-Pandemic Normal

Among our small survey here of three litigators and two court reporters, a consensus emerges that remote depositions will stick—even when the parties can sit side-by-side in a conference room without masks.

Attorneys observe that clients are overcoming reluctance for counsel to depose witnesses remotely. Plus, they appreciate the cost-savings realized when a legal team doesn’t need to fly cross-country.

For their part, court reporters are available to go on-the-record at a moment’s notice. No need to pack their equipment, commute, find parking. “People will get used it, and it will become routine,” said Lozzi.

Davidson of Burns & Levinson expects work-from-home will endure, and remote depositions will not be the exception. “Absolutely, there will more depositions by Zoom in the future. If I’ve got to fly across the country        to take a two-hour deposition of a moderately important witness, given the experience with Zoom, there will         be a judgment as to whether I need to be in the room.”

Likewise, Stevens of McLane Middleton envisions proceeding with live depositions for key witnesses, and taking into account how best to move forward with others. “People have seen the time it saves not to travel and the expense-savings for clients. We’ll consider each deposition. Do we take this one in person or we can it do it remote?”

Prince Lobel’s Sullivan does not disagree, predicting that in the future, more depositions will be taken remotely. “Travel and other deposition-related expenses can be eliminated to everyone’s benefit,” he said, citing clients and legal staff.

“Courts are hearing that remote depositions are going reasonably well. I think it’s going to be a lot easier than before to dispense with a live appearance and conduct it remotely. It will be hard to envision going back to the way it was,” Sullivan maintains.

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