COVID-19 Update: How We Are Serving and Protecting Our Clients

Remote Video Depositions

With COVID-19, courts in Tennessee are encouraging rapid adoption of remote video depositions while in-person proceedings are limited.  Remote video depositions provide the opportunity for all litigants and litigators who want the case to progress to its ultimate resolution.

Brandon Bass, an experienced trial lawyer and shareholder in our firm, shares his thoughts about remote video depositions in the following blog post:

Deciding whether to agree to (or push for) a remote video deposition is a case-by-case strategy decision with some intangible factors to consider. The deponent’s demeanor and rapport with the questioning attorney may change, whether positive or negative. Attorneys must be attentive to logistical and technical issues that may be outside the attorney’s comfort zone from past experiences. Delay, on the other hand, costs time in each case and threatens to create a backlog of work to be done later – right as we should be working on the next batch of cases in discovery.

Telephone depositions are another option. Telephone depositions have their uses, but they are much more limited (especially for use of exhibits). No matter what, it is very hard to keep people from talking over one another in a phone deposition, and you might not even realize at the time that only one person’s mic is being picked up. You can check the pricing difference for whether you want to consider a deposition by phone instead of by webcam. Much of the same considerations count, but the technical options are more limited.

By default under Tenn. R. Civ. P. 30.02(7), scheduling a telephonic deposition must be done by agreement or court order. There is no specific Rule of Civil Procedure for demanding a remote video deposition, so the same process is true as taking one by telephone: it should either be done by agreement or by obtaining a court order to insist on taking it by video. The Supreme Court of Tennessee’s order In re: COVID-19 Pandemic specifically encourages completing court business “by telephone, video, teleconferencing, email, or other means that do not involve in-person contact.”  No. ADM2020-00428, p. 3 (Mar. 25, 2020). Trial courts have the discretionary power to order depositions to be taken by remote video via Tenn. R. Civ. P. 16.01, 26.06(5), and 30.02.

Considerations in coordinating remote video depositions

  • For depositions of non-party witnesses, your own clients, and your own experts, insist in advance that no one will be on-site with the deponent except any videographer and/or court reporter.
    • Consider whether all counsel should agree that no one will be on-site with the deponent, including the deponent’s own counsel.
  • The deponent must be sworn in by a court reporter, judicial officer, or notary who is not affiliated with any party or counsel.  Tenn. R. Civ. P. 28.01, 28.03, and Tenn. Code Ann. § 24-9-136.  (Nothing prevents counsel from stipulating that the oath will be administered by someone else and no objection will be made to the manner of the oath.  However, the stipulation must be in writing.  Tenn. Code Ann. § 24-9-136 and Tenn. R. Civ. P. 29.)
  • There is no rule or statute that specifies whether the person who administers the oath must be in the same place as any attorneys or the deponent.  A Tennessee Attorney General’s opinion suggests maybe the Rules could be interpreted as requiring any court reporter on site with the deponent, but the opinion is sparse on logic.  Tenn. A.G. Opinion No. 01-059.  The Attorney General’s opinion was speculative at the time and now has arguably been superseded by the Online Notary Public Act at Tenn. Code Ann. §§ 8-16-301 et seq.
  • Legally, any audio-video recording equipment would work so long as the recording it creates includes a timestamp, and anyone can set up and operate the equipment (including counsel). Tenn. R. Civ. P. 30.02(4)(B).  Practically, most people suggest at least a complete backup set of equipment and a full-time operator in case anything fails during the deposition, so hiring a videographer or other professional is probably worthwhile for reliable, high quality video with good audio quality.
  • Anyone can operate the audio-video recording, even counsel.
  • Insist that all participants, including anyone on-site with the witness, will be visible live on video. Doing so enables discussion among counsel about objections, exhibits, and the like. Practically, it limits any intentional or inadvertent off camera witness coaching.
    • Recognize that even with all participants visible on camera, there is an increased risk of witness coaching – including use of documents – during breaks.
  • Confirm whether the video recording will display only the deponent, all participants simultaneously, or whoever is talking at any given time.  Also confirm whether documents displayed via screen sharing will be recorded while another person speaks about them.
  • Insist that any video conferencing software is set to require a password or login to prevent anyone else from joining and disrupting the deposition.  (“Zoombombing,” or intrusion by outsiders into a video conference, is most often attributed to having a meeting without using password protection.)
  • If you want video clips to be usable at trial, assume you need a professional videographer with professional equipment. If all you care about is the transcript, try to at least get a lapel mic for the questioning attorney and deponent to be able to hear each other clearly. (A good one that plugs into a computer’s USB port costs less than $25 online.)
    • Contact the videographer / court reporter service well in advance about what equipment and software options they offer. There are no specific legal requirements other than a timestamp on the video, so choose what makes sense, and consider a different service if you do not like their options or the pricing.

Use of exhibits

Generally, treat exhibit preparation and your own knowledge of all possible exhibits like you would treat an examination at trial.  Plan what exhibits you might use and how you might introduce them well in advance.

Once you are familiar with your options for use of exhibits in the particular deposition, reach an agreement with all counsel in advance about the format and presentation of exhibits.  You can avoid objections and technical difficulties by having a deliberate, well-rehearsed method of presenting exhibits to the deponent and introducing them into the record.

  • One option is to send in advance a pre-tabbed binder of all potential exhibits to the witness, with an electronic or paper copy also sent to opposing counsel and the court reporter.  Of course, this method means you cannot have any “surprise” exhibits.
  • Another option if the court reporter will be on-site with the witness is to send an electronic or paper copy of all potential exhibits to only the court reporter.  You can stipulate with counsel in advance that the unused potential exhibits will be treated as work product and returned to the attorney.
  • A third option is to use any screen sharing capabilities of the video conference software.  You can display exhibits on your screen for questioning during the deposition.  After the deposition is completed, you can send copies to the court reporter and all counsel for inclusion in the record.
    • Practice using the specific video conferencing software before the deposition.  “Screen share” has different options and menus depending on the software. You want to know whether clicking “screen share” will display one window, your entire desktop, or one of multiple monitors.
    • Because everyone in the deposition might have different screens and resolutions, be prepared that you might have to zoom into a document for it to be legible to the witness.
    • Assume there is a risk of everyone else seeing anything open on your computer. Close Outlook. Close all file folders. Close anything else that would be confidential and privileged from this case or any other. Clear your desktop of any files that would have file names visible to the deponent, opposing counsel, and the judge and jury later.
      • A separate set of possible exhibits – either paper or on a different computer – might be helpful to have on hand if other counsel might introduce additional documents. For example, assume opposing counsel introduces one page of a lengthy hospital record. If you are looking for another page that refutes the point, it would be helpful to not scroll through every other page of the record onscreen while searching.
      • Plan a method for sharing the complete versions of any documents that counsel or the witness want to review in their entirety before answering a question. This can be as simple as emailing the document or a OneDrive version of it.
    • Consider making a single PDF of all possible exhibits. Refer to page numbers of the PDF in your notes, regardless of individual documents or Bates numbers contained within the PDF. With this method, you can have the same file open throughout the deposition.  Otherwise, changing from one document to another means displaying your complete file folders.
    • Remember to disable screen sharing when you are not using an exhibit with the witness.
  • There are third-party software solutions for using exhibits during a remote video deposition. Most are marketed toward court reporters acting as the “operator” of the software, with attorneys logging in remotely to choose what will be displayed.  Again, consider the court reporter’s options and pricing at the time of booking the deposition.

Deposition mechanics

  • Tenn. R. Civ. P. 30.02(4)(B)(i) spells out what must be read onto the record, though it is common to stipulate that the “read-in” will be shortened or waived.
  • Announce on the record any agreements about the conduct of the deposition, where the persons are participating from, where the court reporter or notary is, and how exhibits will be handled. State clearly it is by agreement.
    • Be wary about stating a stipulation on the record about what specifically will be recorded.  For example, if you have stipulated that every participant’s feed will be recorded constantly, you theoretically risk voiding the deposition if anyone’s video feed fails.
    • If there has been a statement about the manner of the deposition and anything changes by necessity during the deposition, state on the record that everyone agrees to continue with the modified circumstances.
    • Be prepared to object if the deposition is not being conducted in a manner that is fair, consistent with prior agreement, and creating a usable record. Objections to the manner, conduct of participants, and nature of the proceedings are to be made on the record.  Tenn. R. Civ. P. 30.03.
  • Do not use any instant messaging offered by the video software. Zoom, for example, makes all “private messages” part of the recording of the whole video. Assume anything you type on your computer will be displayed and saved for everyone else.
    • Instruct your witnesses in advance of the same.
  • If any editing will be done or clips will be made, you must preserve a complete copy of the original.  You must file the complete original, along with any exhibits, with the court before trial.  Tenn. R. Civ. P. 30.02(4)(B)(viii) and (ix).

This is all Tennessee state court specific. Federal courts have different procedures and rulings on deposition practice. For any case in federal court, review Federal Rules of Civil Procedure 30 and 32, the District Court’s Local Rules, and both the District Judge’s and Magistrate Judge’s chamber rules. The same general considerations apply, though the possible options may be more limited.

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