Taking Depositions During Coronavirus Stay-at-Home Orders: Practical Considerations

By Scott Glovsky on March 31st, 2020 in Coronavirus Resources

It has become increasingly more difficult but not impossible to take depositions in today’s current environment. On March 19, 2020, California governor Gavin Newsom issued an order directing all Californians to stay at their home or residence, except for those conducting essential activities. While the wording of the order considers activities by many lawyers to be “essential,” many witnesses are confined to their homes. Particularly if they are in a vulnerable population, it does not make sense for them nor would many be willing to travel even to a local conference room for a traditional video deposition. The solution for many has been to take video depositions directly from the deponent’s home.

While not optimal, there is a good chance that most witnesses will have a smart phone that has a web enabled camera or a laptop that includes a camera which can be connected to the internet. If they do not have either, then for important depositions a camera can be delivered to the deponent. This method requires that the deponent have an internet connection. If there is no internet connection available, then the only alternative to proceed with a video deposition is to arrange for the delivery of a mobile hot spot which most mobile providers sell. The deponent would then need at least a baseline level of technical literacy to set it up, which is not particularly likely if the witness already does not own a smartphone or laptop and does not have an internet connection. In any case, if there is a camera and internet connection available, then a video chat program can be used. A good alternative could be to mail the deponent a tablet that is mobile enabled because many of them have built in cameras. Many reporting companies have their own proprietary software while others simply use commercial programs like Zoom or Skype. These programs allow all the participants to connect and see video of each other during the deposition and allow for the recording of the witness directly from the programs themselves. This setup means that no videographer is necessary.

Of course, California law still has requirements for the video and the person who set up the video proceeding. Specifically, California’s Code of Civil Procedure requires that the space used for the recording must be “suitably large, adequately lighted and reasonably quiet.” (CCP § 2025.340(a).) This code requires that the person who set up the recording is competent to do so and monitor the recording as it is occurring. (CCP § 2025.340(b), (g).) The person is prohibited from distorting the appearance or demeanor of anyone through the operation of the software. (Id.) The person operating the software can be an employee of the questioning attorney if they are not also the person administering the oath to the deponent. (CCP §§ 2025.320(a), 2025.340(b).) Further, the operator must begin the deposition by stating their name, business address, the date, time and place at which the witness is participating, the caption of the case, the name of the deponent and on which party’s behalf the deposition is being taken. (CCP § 2025.340(h).) The lawyers participating must also identify themselves just as they would during an in-person recorded deposition. (CCP § 2025.340(i).) Similarly, at the end of the deposition, the operator who set up the video software must also make a statement that the deposition is concluded. (CCP § 2025.340(l).)

As a practical matter, introduction of exhibits is difficult but also feasible. The options depend upon the technology to which the deponent has access. If the deponent doesn’t have a computer, then your options are to either mail the exhibits to the deponent in advance of the deposition or to mail a mobile enabled tablet. If the deponent has a web enabled computer or you have sent a mobile enabled tablet, then you can email the exhibits or you can rely upon software to simultaneously display a selected exhibit at the time you would like to use it in the deposition. Much of the proprietary software that reporting companies have includes such functionality but there are also other commercial programs  such as eDepoze that allow lawyers to introduce electronic exhibits as they go through the testimony and mark on them, draw, highlight, and save different versions of them, in addition to other features.

In the circumstances where the deponent doesn’t have a smartphone or laptop with a camera and it is not feasible to send them a mobile enabled tablet, another alternative is a phone-based deposition. This is a deposition where a conference line is used to connect a reporter, the questioning attorney, the defending attorney, and the witness. This option is likely the last one for all attorneys as it comes with numerous practical concerns. First and foremost, it becomes a Sisyphean task for all the parties to avoid talking over each other and for the reporter to create a clean record. Additionally, without any visual assistance, it is incredibly difficult for reporters to differentiate who the individuals are who are talking (although some reporters can be surprisingly good at doing so). Second, presenting exhibits is incredibly difficult and could require that hard copies of all the exhibits are mailed to the defending attorney and deponent before the deposition. This scenario obviously allows the deponent to prepare their testimony concerning these documents with their lawyer and could delay the deposition depending upon if there is a delay in the delivery of the exhibits.

Regardless of whether a deposition is taken remotely by video or through an audio only recording over a conference line, the parties must either first stipulate or the notice of the deposition must include an intention to record the testimony with a description of the method for the recording (audio, video or both). (CCP §§ 2025.220(a)(5), 2025.330(c).)

While it is usually best to conduct a deposition in person, due to current social distancing and stay-at-home orders, it is now a reality where many depositions will need to be conducted remotely. Thanks to technology, it is possible to do so without too much inconvenience or additional cost. If done right, it could be cheaper since you can save on the costs of a videographer and printed exhibits.

For more information, please contact the Law Offices of Scott Glovsky.