In response to the COVID-19 pandemic, courts and litigants are reinventing civil litigation – holding hearings on Zoom or Skype, using emails and conference calls to communicate status, and taking remote depositions. That said, “virtual discovery” is not new. Since 1993, the Federal Rules of Civil Procedure expressly authorized taking depositions by remote electronic means. States including Ohio, Massachusetts and Texas have followed suit. See, e.g., Ohio R. Civ. P. 30(b)(6); Mass. R. Civ. P. 29; Tex. R. Civ. P. 199.1
Remote depositions provide flexible litigants with options, yet even pre-pandemic, courts acknowledged that not all depositions should be done remotely:
Relatively unimportant witnesses typically can be deposed telephonically or via videoconference without causing prejudice to either party. But Plaintiff is not a mere witness. . . . [H]er testimony likely will be a key piece of evidence for both parties. If feasible, a defendant generally should be afforded an opportunity to depose such a plaintiff in person.” Huddleston v. Bowling Green Inn of Pensacola
In response to the pandemic, many state courts have recently issued orders to ease rules that might constrict remote depositions in civil cases including Florida, New Jersey, Wisconsin and Massachusetts.
Some courts have gone a step further – positioning remote depositions as a default discovery mechanism during the pandemic. For example, St. Louis City’s Circuit ordered on April 8, 2020:
Except for good cause shown, the desire of counsel, or a party or interested persons, to appear in person shall not be sufficient grounds to quash a deposition notice or to refuse to provide availability for a witness to be deposed.
Pre-pandemic, an attorney might opt to take a deposition remotely after considering factors such as the substance of the witness’ expected testimony, cost savings, and the parties’ convenience. Now, in some judicial districts, remote depositions appear to be the default. And if a party “desires” to oppose a remote deposition in such a jurisdiction, that party must somehow show “good cause.” This amorphous standard does little to reassure a party who has strategic concerns about deposing a witness by video.
Now, remote depositions pose serious and particular challenges to some litigants. First, any deposition of a corporate representative or expert witness requires thorough preparation of the witness, often including extensive document review, particularly when discussing complex issues. The witness and the lawyer are often learning pieces of the corporate story together, flipping through pages, showing one another relevant materials and often printing out additional pages. This preparation includes examining not only the witness’ knowledge, but also his demeanor. If the two cannot meet because of the pandemic, this collaboration, necessary for effective preparation of an important witness, is stunted. Such obstacles are further magnified during the remote deposition, where that attorney must overcome the difficulties of defending a witness by video and interpose objections virtually.
Difficulties exist not only for those defending depositions. Questioners risk losing the in-person dynamic with a witness that allows an attorney to assess a witness’ credibility and demeanor. See U.S. v. 2003 BMW X5 SUV, VIN 5UXFB93573LN80798. Moreover, deposing medical workers and experts poses particular challenges. Such witnesses might find it difficult if not impossible to prepare and sit for a deposition – remote or not – as they are busy with pandemic-related duties.
Previously, a remote deposition typically would include a court reporter and videographer in the room with the deposed party. But during this pandemic, when a remote deposition is deemed necessary, everyone presumably must be separated from everyone else. Technologically unsophisticated witnesses may have problems with managing the technology. Third-party witnesses may be reluctant or uncomfortable with this process especially when no attorney is physically present.
Finally, one must consider the broader implications if courts rely too heavily on remote depositions to keep their dockets moving. Of course, litigation cannot come to an indefinite halt. Some cases will effectively use “virtual discovery” and mediation to resolve a case without trial. In other cases, a party may agree that remotely deposing a single witness is appropriate. But should a party, against its own “desires” or strategic concerns, be required to depose nearly every witness in the case remotely? Such a circumstance undoubtedly will affect that party’s readiness for trial.
There are no easy answers here. Courts and parties will continue to grapple with these issues into 2021. The role of remote depositions will expand, as it must, to accommodate this “new normal” in our society. Yet a party who has serious strategic concerns about conducting remote discovery should be able to successfully object, even if that means a delay in case progression. To do otherwise would elevate expediency over fairness, efficiency over a litigant’s rights to conduct discovery within the rules and on his/her own terms.