Legal professionals and commentators have rightly extolled the benefits of the massive shift in the legal work environment. Almost overnight, the practice of law went virtual.
As we head into 2022, the legal profession and our clients will benefit from the continued efficiency and flexibility of remote proceedings, but also from increasing in-person interactions that fuel better communication and results.
Remote Depositions Are (Mostly) Here to Stay.
Remote depositions have become the rule, and it is widely accepted that the profession will never return to the pre-pandemic levels of in-person activity. The benefits are now obvious and widely reported on. For the most part, remote depositions have proven to be extremely efficient and effective. The technology is at our fingertips, and Zoom screen-sharing seamlessly allows for exhibits to simultaneously be shown to the witness and everyone in attendance.
When Should Depositions Be Conducted In Person?
In some cases, in-person depositions are preferable to both parties. In those instances, the parties may also take a hybrid approach with some participants and/or the court reporter attending remotely. (Administrative Order No. 49 has been extended until March 1, 2022, permitting authorized persons to administer oaths remotely).
In cases involving numerous parties, a Stipulated Deposition Protocol during discovery, much like a discovery schedule, can be used to facilitate the logistics of remote and in-person depositions. An example might include an agreement for in-person depositions where the parties choose to attend in-person, with a remote option available in the event one or other persons choose to attend an in-person deposition remotely. The protocol can also include certain COVID-19 precautions, such as an agreement that any person who will not question the deponent should appear remotely to allow for social distancing.
Parties will not agree on the approach in every case. It has long been the rule that the examining party could unilaterally choose the deposition’s location, subject to a stipulation between the parties or a protective order under Rule 26(c). See e.g. V.R.C.P. 30(b); 8A Fed. Prac. & Proc. Civ. § 2112 (3d ed.). However, the pandemic ushered in a “new normal”, that necessitated the taking of remote depositions. Court decisions during the pandemic “buil[t] on pre-pandemic case law that liberally allowed for and encouraged remote depositions as the technology for taking depositions in that way has improved significantly over time. Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp. 3d 571, 574 (S.D.N.Y. 2020).
During the spring and summer of 2020, the risk of proceeding with an in-person deposition was undisputable as COVID-19 was “a potentially fatal illness with the ability to spread through asymptomatic or pre-symptomatic carriers, with no approved cure, treatment, or vaccine….” Id. at 575 (finding good cause for a remote deposition where “holding a deposition in a room with a witness, counsel and a stenographer present would place everyone in the room at risk.”).
However, that risk has decreased over the past year with the widespread availability of vaccines. This significant advancement allows for a strategic case-by-case evaluation of whether a proceeding should be remote, or whether it benefits from being in person. For example, in ordering in-person depositions over the witnesses’ objections, the Southern District of California recently concluded that the “threat [of COVID-19] is sufficiently mitigated by the fact that [the proponent] has guaranteed that counsel, counsel’s staff, and the short-hand reporter are all fully vaccinated.” Pruco Life Ins. Co. v. Calif. Energy Dev. Inc., et al., 2021 WL 5043289, at *4 (S.D. Cal. Oct. 29, 2021).
In that case, the following circumstances were more than sufficient to order the witnesses to travel to the district for the depositions in person: 1) a high level of distrust among all parties; 2) near-constant accusations of bad faith and dishonest conduct; and 3) the credibility of the witnesses were central to a substantive issue in the case. Id. The court was further swayed by the argument that “experienced litigation attorneys read body language and find ways to engage witnesses in ways that are not available in a virtual setting.” Id. at *4.
The Zoom-Effect On Truth, Collegiality, And Civility – It’s Not All Good News.
For all the benefits of remote work, depositions, and the remote practice of law, virtual interactions are not without challenges.
For example, there is a risk that a witness at a remote deposition or hearing is relying on materials including notes, internet databases, text messages, and other sources, that the examining attorney does not know about. The risk can be reduced by asking the witness whether they have anything in front of them or on their computer monitor, but it cannot be eliminated the way it can be at an in-person proceeding.
A remote deposition is successful and efficient if at a minimum the witness is civil, answers questions when asked, has appropriate technology to facilitate the deposition, including internet, camera, lighting, and sound; and can avoid distraction from the surrounding remote environment. Not every case or every witness will adhere to these basic requirements. For example, the Southern District of Florida recently sanctioned a defendant who during his deposition walked around the room carrying his camera; watched television; cooked food; refused to correct his camera position; threatened to leave the deposition by “drop[ping] off” the line; and was otherwise “evasive, combative, and not credible.” Ludwin v. Proman, 2021 WL 4775014, at *1 (S.D. Fla. Oct. 13, 2021).
The online forum may also contribute to a lack of restraint in communications by both attorneys and witnesses. In other words, people may act with less civility from behind a computer screen than they would in person. At the same time, the remote environment removed the opportunity for brief personal connections with opposing counsel—short conversations before and after depositions and hearings about the weather, family, and personal information that helped drive civility in our Bar. It’s easy to see the challenge and concern for professional civility in the absence of personal interaction between advocates in an adversarial system, participation in the online forums, and the ongoing challenges of life during a pandemic.
Remote proceedings should continue to be used where they can make litigation more efficient and effective. Not every case or proceeding will be best served virtually. So long as the risks are mitigated, the legal profession and our clients will benefit from increasing in-person court hearings and a case-by-case approach to depositions.