5 Questions You Must Ask Before Defending a Remote Deposition

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Many litigators delegate the logistics of deposition scheduling to office staff, and that’s a practice that often makes sense in the context of in-person depositions. That’s especially true if you’re not the party noticing the deposition.

But with remote depositions, you don’t want to be caught flat-footed by a technical deficiency or strategic disadvantage that could have been resolved with simple due diligence in advance.

Before defending a remote deposition, make sure that you can answer these questions:

1) Is my internet signal strong enough so that I can be fully seen and heard?

Some attorneys, believe it or not, have stronger, more consistent internet service at home rather than in their office. What time you’re online matters, as well as how many others are on the network competing for the bandwidth. Being hardwired directly into the router or network rather than depending on over-the-air wi-fi helps, too.

If you haven’t had a lot of practice with remote streaming platforms and aren’t sure where you can get the strongest signal, ask for a brief test. You’ll be more confident in your ability to hear every word on deposition day, when it matters the most. (And if you’re also responsible for the witness’s connection, be extra vigilant that their internet service is sufficient as well.)

2) Are my webcam, screen and microphone properly configured?

If you are participating from your primary working desk, and don’t often play around with your IT setup, you might be surprised at deposition time if the wrong one of your two monitor cameras is turned on (showing other participants desk decor rather than your litigation game face), or if your two-screen functionality plays tricks with the streaming feed.

Does your firm have multiple Zoom account credentials? Are you working with an unfamiliar platform that requires creation of a login and/or a download? Does your office firewall place extra restrictions on incoming content? All of these should be addressed in advance with a brief test when the streaming setup is not one you’ve used before on your preferred device.

And of course, your microphone and audio setup are crucial as well. If testing yields silence, cupped ears from your testing partner, or deafening feedback, you’ll need to address this before deposition day. Make sure that your microphone is adequate for the job, and if it’s not, plan to participate with a dual feed (muted computer for video, telephone for audio).

If you’re inviting your client witness to your office and planning on being socially distanced within the same room for the deposition, think through those logistics as well. If the witness will be on camera and the attorney will be off camera, make sure your microphone is strong enough to pick up both of you. If you’re planning to be in the same room on two devices, one device will have to be muted to avoid feedback. (Beware slow bandwidth in this scenario as well — make sure your connection is strong enough to handle both without difficulty.)

3) How are the exhibits being shared? Am I better off at a laptop than in a videoconference room?

With remote depositions, exhibits must be shared electronically if they are not delivered to opposing counsel in advance (often problematic for a number of reasons). General-business platforms such as Zoom allow for real-time screen sharing, allowing litigators to display exhibits from their file that were not planned in advance. Advanced tools such as vTestify and others go a step further, mimicking a physical stack of paper by giving each participant the ability to revisit shared documents on breaks or during a later portion of the proceedings. In some cases, witnesses may want to mark on or highlight important pieces of the document.

If you’re sitting at a conference table with a large projection screen, and the laptop controlling it (if any) is on the other side of the room, you lose virtually all of this functionality. Streaming platforms are designed to be interactive, not telephones with pictures. You don’t have to be a technical expert, but you should at least be able to view the platforms as they are designed to be used, rather than roping your IT staff into the mix to reverse-engineer gold back into straw. If you show up to a remote deposition not understanding the high-level fundamentals of the platform being used, you will be at a strategic disadvantage.

4) Is the video of this deposition being recorded? And if so, how?

Not all streaming depositions are automatically video-recorded. Indeed, if a remote deposition has not been noticed as a videotaped deposition, some parties may object to video recording.

Then there’s the question of, what is being recorded? Most platforms are highly customizable, allowing witness-only views, rotating current-speaker-only views, “gallery” views with all participants recorded at the size of postage stamps, and other bells and whistles. All of these require skill, expertise and forethought, and you can count on being billed extra for this effort if you require a recorded final product, to say nothing of the responsibility to exclude off-record material from the recording.

Never assume that the video of a streaming deposition will be automatically recorded. Ask in advance, and understand what noticing counsel has arranged with regard to any recordings.

5) Who is responsible for the streaming feed if anything goes wrong?

While streaming platforms do occasionally have general outages, in all likelihood, if your deposition stream goes down, it’s probably a troubleshooting issue. Who will you call to investigate?

Is the noticing law firm providing the feed from their internal account? Who on their staff would know how to get a dropped stream back on track?

What is the customer support line for the streaming platform itself, if it’s not a simple user-level issue? How responsive is their customer support? Can you even get someone on the phone at all?

Hopefully your well-prepared, well-tested feed will run flawlessly during your deposition, but it’s a good idea to have your “what-if” scenario close by to avoid long delays.

In summary, be the litigator that leaves nothing to chance…the convenience of remote depositions make them a valuable tool in your practice, but it’s important not to take the basics for granted. If opposing counsel has noticed a deposition with our office, contact us with any pre-deposition questions you may have about the streaming logistics, and we’ll be happy to help you get up to speed before deposition day.

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