Trial Magazine

In the wake of the COVID-19 pandemic, face-to-face depositions have become medically ill-advised and, in some states, violate stay-at-home executive orders. This limitation does not mean that litigation must be placed on hold for months. Rather, you should continue using the same methodologies permitted long before the pandemic to ensure remote depositions are conducted properly.

Check the Rules

The Federal Rules of Civil Procedure allow for a deposition to be taken remotely, either by stipulation from the parties or by a court order.¹ Specifically, Rule 30(b)(4) states that “the parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. . . . [T]he deposition takes place where the deponent answers the questions.”²

Remote depositions are a clear solution to pandemic-related health concerns for the witness, reporter, and attorneys. Nevertheless, you may encounter defense counsel trying to improperly obstruct access to information. They may insist that the litigation be continued until depositions can be taken in person. Remind them that courts throughout the country have rejected such tactics.³ If your adversary refuses to participate in a virtual deposition, file a motion to compel under Rule 37(a)(2)(b)(ii).

Remote Oaths

One issue that has surfaced as remote depositions increasingly become the norm is how a witness should be placed under oath when the court reporter is not physically in the presence of the witness. Jurisdictions vary in their solutions to this challenge.

Some states, even before the pandemic, had passed legislation permanently allowing remote notaries for depositions.⁴ (See map on p. 27.) Other states, through executive order, executive guidance, judicial order, or legislation have allowed for temporary remote notarization.⁵ Some have set end dates, while others include open language, allowing remote notarization until the state of emergency ends.

A few states are ambiguous as to the notary procedure during the pandemic. In those states, it’s best to enter into a stipulation with opposing counsel to allow a remote notary to administer the oath. If counsel refuses, a motion to the court is the final alternative to ensure that the testimony will be admissible.

If you are in a jurisdiction that is temporarily allowing remote oaths, it’s important to confirm the effective dates during which remote notaries are permitted. Rule 32(d)(3)(B)(i) provides for objection as to the “oath or affirmation” of the witness.⁶ If a deposition proceeds under the objection that the oath does not comply with the rules of the jurisdiction or the witness is not legally under oath, the testimony may be inadmissible at trial.

 

Witness Coaching

You may be reluctant to embrace virtual technology for depositions over concerns that defense counsel will use this opportunity to engage in improper witness coaching. Though you won’t be physically present to observe witnesses and their counsel, witness coaching is universally prohibited.⁷ Rule 30(c)(1) requires depositions to “proceed as they would at trial under the Federal Rules of Evidence.”⁸ It’s fundamental that, at trial, a witness’s lawyer does not sit beside the witness and tell him or her what to say and not to say.

The U.S. Supreme Court has clearly defined the lawyer’s role during a client’s testimony: “[W]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel’s advice.”⁹

Lower courts have clarified that this standard of conduct applies to depositions as well, noting that “the fact that there is no judge in the room to prevent private conferences does not mean that such conferences should or may occur.”¹⁰ And the Seventh Circuit also has condemned off-the-record conferences, explaining that “it is too late once the ball has been snapped for the coach to send in a different play.”¹¹

The mere fact that the deposition is taking place in a virtual or telephonic setting does not change the prohibition against witness coaching during testimony. When the defending attorney and the deponent exchanged numerous text messages during a deposition, a district court found that “counsel engaged in conduct that violates Rule 30 by communicating with the deponent after she was sworn for the deposition and throughout the deposition.”¹² That court further ruled that because the text messages violated Rule 30, those communications were not protected by the attorney-client privilege and ordered their disclosure.¹³

Most videoconferencing technology platforms you’ll encounter have a chat function. It’s best to have the court reporter manage the platform to ensure that the chat function is disabled. Recently, a court eliminated the danger of improper chat communications during depositions by ordering that the court reporting or information technology firm managing the technology disable the private chat feature.¹⁴

Attorney-Client Conferences

There is no dispute that an attorney is absolutely prohibited from communicating with his or her client during the active questioning of a deposition, except to protect privilege. However, there is a split in authority as to whether an attorney may confer with his or her client during breaks.

The Hall standard. In Hall v. Clifton Precision, the court expressly held that “conferences between witness and lawyer are prohibited both during the deposition and during recesses.”¹⁵ Under this strict approach, all attorney-client conferences throughout the deposition regarding the testimony’s substance are prohibited, except when the conference’s purpose is to decide whether to assert a privilege. “Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break, or evening recess is no reason to change the rules.”¹⁶

If an attorney conducts a prohibited off-the-record conference in a Hall jurisdiction, those “conferences are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether there has been any coaching and, if so, what.”¹⁷

The Stratosphere standard. An alternative standard under In re Stratosphere Securities Litigation allows the defending lawyer to confer with his or her client during regularly scheduled breaks or unscheduled breaks that the defending lawyer did not request. The Stratosphere court stated it “will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempting to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness.”¹⁸ The court added that “so long as attorneys do not demand a break in the questions, or demand a conference between question and answers,” it was “confident that the search for the truth will adequately prevail.”¹⁹

The Stratosphere court found that recess conferences are consistent with Rule 30(c)(1), requiring depositions to proceed as they would at trial. Attorneys and their clients “regularly confer during trial and even during the client’s testimony, while the court is in recess, be it mid morning or mid afternoon, the lunch recess, [or] the evening recess,” noted the court.²⁰ “The right to prepare a witness is not different before the questions begin than it is during (or after, since a witness may be recalled for rebuttal, etc., during trial).”²¹

Under the Stratosphere standard, if the defending lawyer requests a recess during an active line of questioning or while a question is pending, the recess should be delayed until the question is answered and the questioning attorney has had a reasonable amount of time to pursue the line of questioning.²²

Preventing Electronic Mischief

To ensure no witness coaching or improper attorney-client conferences occurred during a virtual deposition, one court recently ordered a witness to sign a declaration at the conclusion of the remote deposition.²³ That declaration, set forth in Holcombe v. United States, is as follows:

DECLARATION

I am [deponent name], and I declare the following as true and correct:

I am of sound mind, over the age of 18, and have personal knowledge of the facts contained in this declaration. I was a deponent in the above styled cause and was deposed by the parties by remote means.

From the beginning of the deposition until the end of the deposition, including breaks, I was under oath and received no coaching, assistance, or other help in answering questions, whether in person, by telephone, videoconference, or any electronic or other means of communication.

From the beginning of the deposition until the end of the deposition, including during breaks, I did not communicate—whether in person, by telephone, videoconference, or any electronic or other means of communication—with any person about the case other than what is reflected in the court reporter’s transcript of the deposition. In the event I communicated with counsel off the record to address potential privilege and/or confidentiality issues, the break (and reason for the break) was noted on the record.

Under 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.²⁴

In the absence of such a declaration, you can make the same record by questioning the deponent at the conclusion of each break and at the conclusion of the deposition to determine whether there was improper contact. Ask whether the witness has received emails, text messages, or any other form of communication from his or her lawyer at any point during the deposition, whether during questioning or during a break. If the answer is yes, continue your questioning to determine whether the communications were proper or not.

If you suspect improper communications, build your record for a motion to compel, and immediately send a letter instructing defense counsel and their client to preserve all communications until the matter can be heard by a judge.

There is no need for the wheels of justice to grind to a halt during the pandemic—the federal rules and the courts provide tools for advancing cases in a professional and expeditious fashion. Remember the same rules apply to virtual and in-person depositions: Witness coaching is improper and unethical, and attorneys who engage in such conduct do so at their peril. By ensuring that there is no misconduct as you create the factual record, your cases can still be developed as we work our way through this difficult time.

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STIPULATION FOR TAKING THE DEPOSITION OF [NAME] BY REMOTE ELECTRONIC MEANS

WHEREAS, Rule 30(b)(4) provides the parties to stipulate in writing that a deposition be taken by telephone or other remote electronic means;

WHEREAS, allows a notary public who is physically located in this state to perform a remote online notarial act, including administering the oath to a witness;

WHEREAS, due to the present COVID-19 pandemic, as well as various state and federal emergency declarations and orders, and the need to adhere to social-distancing requirements and recommendations;

WHEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the above-named parties through their respective counsel, that they will follow the protocol described herein for the remote deposition of [NAME] in this case:

1. The court reporter may administer the oath or affirmation to the deponent remotely;

2. The court reporting service will arrange, coordinate, and host the deposition through a secure videoconference technology, such as Zoom or a functional equivalent;

3. The court reporting service will provide technical information, including the online link, to the deponent, counsel, and the parties to be able to participate in the remote deposition;

4. Upon request, the court reporting service will be available to test the videoconference technology the prior business day before the deposition so that any technical issues can be identified and resolved in advance of the deposition;

5. The court reporter’s transcript shall serve as the official record of the deponent’s testimony;

6. As the host of the videoconference, the court reporter shall video-record the deponent while on the record; the court reporter will announce each time he/she has activated the record function and each time he/she has deactivated the record function;

7. The video-recording of the deposition created by the court reporter using the videoconference technology shall be deemed the equivalent of a video-recording made by a videographer, and shall be available for use in trial as though prepared by a videographer;

8. As the host of the videoconference, the court reporter shall disable the videoconference technology’s “chat” function (or similar private communication function);

9. After the deponent has been sworn for the deposition, there shall be no private off-the-record communications by any means between the deponent and counsel, other than to discuss a privilege, while on the record;

10. Communications between the deponent and counsel are permitted during any recess not requested by the defending counsel or witness.

OR

10. Communications between the deponent and counsel are not permitted during any recess;

11. Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the Court;

12. After the deponent has been sworn for the deposition, there shall be no private off-the-record communications by any means between the deponent and any person acting on behalf of any counsel or party, until the deposition has been
completed;

13. The court reporter will provide a running real-time transcript on the videoconference; and

14. As the host of the videoconference, the court reporter will present the exhibits when identified on the videoconference or allow the questioning counsel to have the screenshare function to show exhibits on the videoconference screen.

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Mark R. Kosieradzki is a founder of Kosieradzki Smith Law Firm in Minneapolis, Minn., and the author of Deposition Obstruction: Breaking Through (AAJ Press 2019). He can be reached at mark@koslawfirm.com. Copyright © 2020 Mark R. Kosieradzki.

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Notes

1. Fed. R. Civ. P. 30(b)(4).
2. Id.
3. See, e.g., Order Denying Jerome Pivnik’s Motion for a Protective Order Regarding His April 2, 2020 Deposition, Klein v. Transguard Ins. Co. of Am., No. 2018 CA 006742 NC (Fla. Cir. Ct. Sarasota Cty. Mar. 31, 2020); Supplemental Case Management Order Regarding COVID-19 Emergency Measures, In re: All Asbestos Litig. (Ill. Cir. Ct. Madison Cty. Mar. 17, 2020); Order, Sinceno v. Riverside Church in the City of N.Y., No. 18-cv-2156-LJL (S.D.N.Y. Mar. 18, 2020); Order, Hecker v. W. Tidewater Reg’l Jail Auth., No. 2:19-cv-00373-HCM-LRL (E.D. Va. Mar. 23, 2020); Order and Reasons, Saps, LLCS v. Ezcare Clinic, Inc., No. 2:19-cv-11229-CJB-JVM (E.D. La. Apr. 21, 2020); Order Regarding Remote Oral Depositions by Videoconference (Tex. Dist. Ct. Harris Cty. Mar. 24, 2020).
4. See Remote Notarization, Nat’l Ct. Reps. Ass’n, https://tinyurl.com/yaj8afzg; Geoffrey A. Vance & Simon Joassin, U.S. Remote Deposition and Oath Status (June 11, 2020), https://tinyurl.com/y7a9yebc. 
5. Id.
6. Fed. R. Civ. P. 32(d)(3)(B)(i).
7. See, e.g., Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).
8. Fed. R. Civ. P. 30(c)(1).
9. Perry v. Leeke, 488 U.S. 272, 281 (1989).
10. Hall, 150 F.R.D. at 528.
11. Eggleston v. Chi. Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 902 (7th Cir. 1981).
12. Ngai v. Old Navy, 2009 WL 2391282, at *4 (D.N.J. July 31, 2009).
13. Id.
14. Remote Deposition Protocol Order, Holcombe v. United States, No. 5:18-CV-00555-XR (W.D. Tex. Apr. 28, 2020). 
15. Hall, 150 F.R.D. at 529.
16. Id.
17. Id. n.7.
18. In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621 (D. Nev. 1998) (emphasis added).
19. Id.
20. Id.
21. Id.
22. Id.
23. Remote Deposition Protocol Order, supra note 14.
24. Id. Alternatively, if you are in a Stratosphere jurisdiction, you can modify the affidavit to verify that there were no communications during the testimony.