Source: Lexblog
We all have been doing Zoom depositions for the last four years. As we have limped along, we have developed implied rules and protocols for having these depositions, but there are no written rules or guidance on how these depositions should be conducted.
Justice James Lambden (Ret.) who often is appointed as a Discovery Referee, has the answer. When he is the Discovery Referee, he serves on all parties his “REMOTE (HYBRID) DEPOSITION PROTOCOL” prior to depositions being conducted. When Justice Lambden attends the deposition, he confirms on the record that all parties have read and understands the protocol. He has found that his protocol aids him and the parties in conducting a clean Zoom deposition.
Below is Justice Lambden’s protocol. I recommend that you implement the protocol for Zoom depositions even if you don’t have a Discovery Referee and attach it as an exhibit to the deposition.
1. At the outset of the deposition, the deponent and counsel must identify everyone attending the deposition (including any authorized party representative and/or employee, support, or technical staff in the room with the deponent and/or counsel). If any person enters the location where the deponent is located during the deposition, the deponent and/or the deponent’s counsel shall immediately notify all other attendees. The parties reserve the right to request any unauthorized person to be excluded from attending the deposition.
2. The microphones for certain attendees (such as the witness, the attorney taking the deposition, and the attorney defending the deposition) must remain on when the deposition is on the record. Other remote attendees should mute microphones when not speaking
3. The video feeds for all attendees (other than court reporter and videographer and video/exhibit technician appearing remotely) must remain on when the deposition is on record. If a deponent is represented in-person by counsel, counsel for the deponent shall separately log in to the remote deposition so that counsel can be seen and heard. If during the deposition, technical difficulties with the video feed of any attendee arise, then counsel (attendee) shall identify on the record such difficulties and appear by audio only until the video is available. In the alternative, the parties may elect to suspend the deposition until the technical difficulties are resolved.
4. During the deposition examination, no counsel or party is permitted to communicate with the deponent (verbally, in writing, or by conduct) by any means not recorded in the same manner as the deposition itself (e.g., stenographical by a certified deposition reporter). This includes that no counsel shall initiate a private conference, including through text message, electronic email, or the chat and/or instant message feature on the videoconferencing system. No counsel shall further attempt to communicate with the deponent by any method not observable through the videoconference technology, including by way of hand gestures, signals or writings not visible on camera. All private chat features on the remote platform should be disabled for the duration of the deposition, and all applications on the deponent’s device other than the applications being utilized to conduct the deposition shall be closed. No witness shall communicate with any counsel or party (verbally, in writing, or by conduct) while on the record at the deposition in a manner that the examining attorney cannot personally observe through the videoconference technology, including by way of private conference and other methods not observable on camera discussed herein. However, the deponent’s counsel may communicate with the witness in-person, telephonically, or by other electronic means (including, but not limited to, the use of the remote connection software) during breaks in the deposition.
5. The Discovery Referee and/or noticing attorney shall admonish the deponent to look either at the screen/monitor or at the exhibit (if the deponent is being examined about an exhibit) when on record.
6. The Discovery Referee and/or noticing attorney shall admonish the deponent to answer all questions by himself/herself.
7. The Discovery Referee and/or noticing attorney shall admonish the deponent not to look to anyone or anything else in answering questions on the record.
8. The Discovery Referee and/or noticing attorney shall admonish the deponent to communicate with only the examining counsel while on the record. This includes checking text messages, emails, instant messages, or any other forms of communication, including by way of hand gestures, signals or writings not visible on camera.
9. The discovery referee and/or noticing attorney shall admonish the deponent to close all applications on the deponent’s device other than the applications being utilized to conduct the deposition.
10. The discovery referee and/or noticing attorney shall admonish the deponent to show on camera that all devices not being used for the remote deposition are off and/or otherwise identify where they are located.
11. Other than through the official videographer and court reporter, no party may record (either video or audio) any portion of the deposition without advising all counsel.
12. A party may request that a camera be placed in the room where the deponent is located so that entire room is visible for the duration of the deposition. The party making such a request shall be responsible for all costs associated with the request.
Also see Blogs “What Lawyers are Getting Wrong in Virtual Depositions” and “Rule of Court Changes for Remote Depositions.” for more information on Zoom depositions
Good Luck!!
