CBA Record March-April 2021

opposing counsel well in advance of the deposition. Retain a copy of the binder for yourself. Proceeding in this manner helps take an element of technology out of the deposition. If everyone has a physical copy of the document, screensharing is not nec- essary, and you can avoid potential time- wasting technology issues that result from screensharing. However, this approach has risks, as it may tip the witness and opposing counsel off about certain lines of questioning you may pursue if they have an advanced look at the exhibits. Carefully evaluate whether this approach is right for the particular deposition. If you will be using electronic exhibits, organize them in a folder on your computer and number them in the sequence that you plan to use them. Practice sharing docu- ments with a colleague on a dry run. One benefit of using electronic exhibits is that you can use the highlight feature to draw attention to specific sections of documents during the deposition. Practice using this feature and consider beforehand which document sections you may use it on. Go over the ground rules with the wit- ness at the beginning of the deposition. Just as at an in-person deposition, go over the ground rules with the witness after they are sworn in and after they state their name for the record. Be sure to include all of the standard ground rules for a deposition (such as, only one person speaks at a time, etc.), but be sure to advise the witness of any spe- cial ground rules or procedures that result from the remote nature of the deposition. In particular for witnesses I am presenting for deposition, I emphasize during our prepa- ration sessions that the witness should wait an extra second or two after a question and watch my video screen to see if I have an objection to the question before the witness answers. When taking a remote deposition, the beginning of the deposition is a good time to remind the witness about any special ground rules and to reemphasize them. For example, I remind witnesses that they can be the only person in the room and that they should not be texting, using e-mail, or otherwise communicating with anyone during the deposition. Speak slowly and clearly. Just as you would at an in-person deposition or a

remote court hearing, be sure to speak slowly and clearly so the witness, court reporter, and opposing counsel can hear the question. If the witness did not hear the question, you can ask the court reporter to repeat the question. While remote deposition audio quality is gener- ally good, sometimes connection quality and the available bandwidth can fluctuate and lead to garbled audio. Be prepared for this possibility and employ a style and technique that allows other participants in the deposition to easily understand you. Do not hesitate to take breaks. Taking breaks at remote depositions is even more important than taking them at in person depositions. Because remote depositions are occurring through a computer screen instead of face-to-face, tempers can often flare. A short break is always a good way to deescalate any rising tempers. Additionally, people can get lethargic staring at a com- puter screen for long periods of time, they need to eat lunch, and nature sometimes calls. Do not be bashful in asking for a short break at an appropriate time during the remote deposition. Employ appropriate IT security for the deposition. Employing appropriate IT security for the deposition is critical to ensuring that your deposition does not get disrupted or that an interloper invades the deposition and hears confidential testi- mony. Enable the waiting room and restrict the screen sharing function to mitigate the risk of “Zoom bombing.” Additionally, if you are going to be showing the witness documents or eliciting testimony that is confidential, do not admit unknown per- sons to the deposition. Lastly, the recording feature of the software you are using should be disabled. If the deposition is videotaped, it should be properly noticed and recorded by the court reporting service you have engaged for the deposition. Be flexible and prepared for technol- ogy issues and disruptions. The legal profession has done an incredible job of quickly implementing remote deposition protocols and adapting to them in an era where in-person depositions are risky, not advisable, or impossible. The exist- ing technology platforms for conducting remote depositions are very good, but of

course they are not perfect. Be prepared for technical disruptions, such as audio issues, video issues, connection issues, or problems using the screenshare function. For example, if you were preparing to use the screenshare function to show the wit- ness exhibits but you cannot because of technical problems, be prepared to email your exhibits to the court reporter, the witness, and opposing counsel. During one of my last remote depositions in which I presented an expert for deposition, the witness’s power went out 5 hours into the deposition because of severe weather. Plan your deposition to account for potential technology issues and be very efficient with your time in case any technology issues arise that cause the deposition to go longer or that cause the deposition to terminate prematurely. If technology issues do arise, be flexible and work col- legially with opposing counsel to resolve the technical issues and to develop a plan going forward. If someone’s internet does go out, like my example, many phones can act as a WIFI hotspot. You can then use your cell phone service and internet to continue the deposition. Reserve signature. If you are presenting a witness for deposition, I strongly recom- mend that the witness reserve signature and the opportunity to review their testimony to ensure it was transcribed accurately. As mentioned above, it is important to anticipate technology issues, including garbled audio. Garbled audio and other connection issues may affect the court reporter’s ability to accurately transcribe the witness’s testimony. Reserving signature so that the witness can review his or her testimony is an additional safety measure to ensure that the witness’s testimony was transcribed accurately.

Jac ob B. Be r g e r i s an associate at Tabet DiVito & Rothstein LLC who practices pri- marily in the area of commercial litigation and as Vice Chair for the YLS Journal in the

CBA Record.


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