Last week’s blog recounted the story of a litigator surprised by the unannounced, off-camera presence of the witness’s mother in the room during her son’s remote deposition. That should never have happened and, in modern practice, it most likely would not, due to the increasing prevalence of remote deposition protocols in pretrial discovery planning documents.
Remote’s New Cast of Characters
The “remote” nature of a remote deposition invites the presence of deposition participants who would not ordinarily enjoy easy access to an in-person deposition. The first group of new participants are members of the litigation team who, thanks to modern remote deposition technology, can participate in – or, at least, observe – the deposition in real time. Their participation in the deposition process makes pretrial discovery significantly more efficient and more likely to lead to early, successful litigation outcomes.
Then there’s the second group: those unauthorized remote deposition participants who take advantage of counsel’s inability to perform an on-the-scene inspection of the room in which the deposition witness is testifying. These are the troublesome participants that the American Bar Association cautioned against in its Best Practices for Remote Depositions guidance.
Fortunately, concerns arising from either type of remote deposition participant can be resolved through a remote deposition protocol. With a remote deposition protocol in place, litigators can limit in advance who will be authorized to attend the deposition and establish ground rules for how they will be allowed to participate. (Counsel should consult local court rules that may limit who can attend depositions and whether or not these rules can be modified via stipulation.)
For example, in Ali v. Franklin Wireless Corp., No. 21-cv-687 (S.D. Calif.), litigators described authorized participants in remote depositions as follows:
- “Participant” shall mean the Witness, the Questioning Attorney, the Defending Attorney, other attorneys or client representatives appearing on behalf of one of the Parties or a Third Party, paralegals or other individuals providing support to the attorneys, the Court Reporter, the Videographer and the Operator.
Another case, Geiser v. The Salvation Army, No. 22-cv-01968 (S.D.N.Y), described the same cast of characters similarly:
The term “Deposition Participants” means all persons attending a Remote Deposition and includes, as applicable: (i) all attending Plaintiffs’ counsel; (ii) all attending TSA counsel; (iii) counsel for any third-party subpoenaed for the subject deposition (if the third-party and the Parties agree in writing that this Order applies to the third-party’s deposition per Paragraph 1); (iv) the deponent; (v) the deponent’s counsel; (vi) in-house counsel for TSA or any third-party; (vii) the court reporter; (viii) the videographer; (ix) an interpreter, if necessary; and (x) any other participant agreed upon by the Parties.
Additional authorized remote deposition “participants” might also be expert witnesses or consultants to the litigation team. Some remote deposition protocols restrict attorneys to attorneys of record in the case. In all events, establishing in advance who may – or may not – participate in a remote deposition ensures that the deposition will proceed smoothly and without the presence of unauthorized individuals.
Define Acceptable Conduct for All Participants
Having described the universe of authorized remote deposition participants, most remote deposition protocols create ground rules for their participation in the deposition. The ABA has suggested this step as a “best practice” for remote depositions: “[T]he parties may want to consider a stipulation and order from the court specifically defining the conduct of the deposition including what counsel may and may not do during the deposition.”
While each case will demand its own set of acceptable participant behaviors, the following deposition ground rules have found their way into remote deposition protocols in the past few years:
- Participants must log in to the remote deposition platform
- The remote technology provider must show a list of all participants during the deposition
- Participants must identify themselves for the record
- Witnesses must identify anyone in the room where they are testifying
- Witnesses must use their camera to pan the room to show the presence, or absence, of other individuals
- Participants must mute their microphones when not questioning the witness
- Participants must mute or enable “do not disturb” settings for local applications not in use during the deposition
- Attorneys must be visible to the witness at all times during questioning
The list of “dos” and “don’ts” for remote deposition participants is limited only by counsel’s imagination.
Despite its lofty and vaguely futuristic name, a remote deposition protocol is nothing more than a stipulation designed to address in advance anticipated trouble spots in the remote deposition process.
For the most part, these are areas where the court rules have not yet caught up to modern litigation technology. Any aspect of the remote deposition process that is not clearly addressed by court rule is a good candidate for mention in a remote deposition protocol. Describing who may participate, and how, in a remote deposition – the subject of this blog post – is just one area among many that will benefit from experienced counsel’s foresight, attention, and judgment.
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