Get Started With Remote Depos
May 2020 - Brian D. Cook
In the last two months, our practices have undergone a seismic shift. One small, but critical, piece of that puzzle is taking depositions remotely. Here are the basic tools you need to confidently conduct a deposition when all the participants are in different locations.
Hardware. You need a computer with a monitor, a webcam, speakers, and a microphone—most have these components built in. If yours doesn’t or if you’re looking for higher-quality hardware, you can buy what you need online. I recommend a webcam that rests on top of the monitor so you can see your screen and be seen in the same space. Avoid standalone or desktop cameras. Logitech, Creative, and Microsoft make great, reliable products. You typically can find something for between $50 and $250. Get a webcam with at least 720p resolution. The Logitech C922x Pro Stream is a good option.
Sending and receiving video uses computer memory, so check that you can stream video without it becoming choppy. Any external hardware should attach to your computer via USB ports and be “plug and play.”
You can run the audio over a phone line, but I find this cumbersome. Plus, two separate systems (one for video and one for audio) just means two chances for something to go wrong.
Internet speed. You need a reliable internet connection. Assess the connection speed with a web-based test such as www.speedtest.net, www.wirefly.com, or your internet service provider’s website or app. You will be sending (uploading) and receiving (downloading) video, so you need adequate speed to do both tasks, particularly if you’re going to record the deposition yourself. For high-quality video, 10 Mbps (megabits per second) is sufficient, and you might even get away with 5 Mbps.
Software. The essential element is videoconferencing software. At its most simple, using FaceTime on your iPhone, iPad, or Mac would work, but that requires everyone to have an Apple device. Skype is slightly more sophisticated and is also free.
Even more sophisticated options are Zoom (my preference), Google Hangouts Meet, WebEx, and GoToMeeting. These have more advanced features such as recording; online video storage; screen sharing; and integration with popular calendar software such as Outlook, Google, or Office 365, or with chat tools. Many offer free basic versions that should be enough, reserving the most robust features for their paid accounts.
Recording and exhibits. The best option is to have the court reporter’s company record the deposition. If this is not an option, is too expensive, or you prefer to do it, many programs include recording options. For example, Zoom has a “ribbon” along the bottom of the screen with a “record” button. You can store the video on your computer or in the cloud. For a two-hour deposition, have at least 5GB of storage space available.
If you are not worried about opposing counsel seeing exhibits ahead of time, email them to everyone in advance (or even moments before the deposition starts, as long as everyone can access them). But many videoconferencing programs let you share your screen so you can show the exhibits at precisely the moment you want. You can do this yourself (which gives you the most flexibility and control), or you can ask whether your court reporter can do this for you. And you can use your mouse or other software to highlight parts of exhibits when questioning the witness.
Odds and ends. Make sure the court reporter can use the technology. Check that all other participants—including the witness—have the requisite hardware and software. Does your state have a statute or civil rule on remote depositions? Can your court reporter swear in the witness remotely? In Kentucky where I practice, court reporters now are allowed to act in their notary capacity to swear in witnesses remotely over videoconferencing software. Find out if such rules exist in your jurisdiction, and cite them at the start of the deposition.
It is critical to practice before the deposition. Try to set up a “mock” deposition with your court reporter and at least one of your coworkers or other attorneys in your local trial bar. Once mastered, the flexibility and cost savings of remote depositions may persuade you to adopt this technology even after the world has returned to a more normal state.
Brian D. Cook is a partner at Bahe Cook Cantley & Nefzger in Louisville, Ky., and can be reached at firstname.lastname@example.org. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.