As published in the Daily Business Review
By: Mason T. Nettleton | May 7, 2020
COVID-19 and resulting social distancing guidelines instantly created the need for attorneys to consider alternative solutions to in-person depositions to avoid unnecessary discovery delay. This article presents litigators helpful tips to consider in order to maximize the efficiency and conduct an effective remote deposition for your client both during the COVID-19 pandemic and in the future once our daily practice returns to some normalcy.
Florida Supreme Court Administrative Order AOSC20-23 addresses the need for attorneys to conduct depositions remotely by permitting the use of audio-video communications in order for a court reporter to administer an oath to witnesses for depositions and other legal testimony. Suddenly litigators of all generations now must become familiar with new technological platforms to conduct depositions. Although many attorneys would prefer depositions be conducted in-person, a mere preference to conduct a deposition in-person is not a presently recognized legal objection in Florida to a remote deposition. If your opposing counsel is refusing to schedule a remote deposition of their client to occur without any legitimate objection, you can move to compel the deposition just as you would an in-person deposition pursuant to Rule 1.310 and 1.380, Florida Rules of Civil Procedure.
Most court reporting agencies in Florida now offer to host remote depositions along with their court reporting services through audio-video applications. The court reporter will often set up the link to access to the audio-video application once a deposition is scheduled. Attorneys should become familiar in advance of a deposition by testing the particular interface on which a deposition will be conducted.
At the start of a remote deposition, a court reporter shall positively identify and swear in a witness through the witness presenting photo identification to the court reporter through the video feed. An attorney conducting a deposition of a witness should ensure in advance of the day of the deposition the witness has identification to present to the court reporter.
Exhibits must also be organized and distributed in advance by the attorney conducting the remote deposition. Oftentimes during in-person depositions, litigators wait to present a document to a witness and counsel until just before introducing the exhibit during the deposition. However in remote depositions, waiting until the last moment to present exhibits is not advisable and will cause delay and confusion. Attorneys intending to introduce exhibits during a deposition should instead ensure they have electronically uploaded and provided readily identifiable copies of each exhibit to the witness and counsel in advance of the deposition.
Avoiding delay to necessary discovery depositions during COVID-19 is a great benefit for attorneys, however obvious negatives to remote depositions exist which practitioners should be aware of—first, a vast majority of litigators would prefer taking in-person depositions because observing witness body language is one of the main benefits to in-person depositions. These observations are hampered somewhat over a video feed.
Other difficulties attorneys will encounter during remote depositions include poor quality of video; attendees talking over one another unintentionally; and, issues monitoring whether a witness is alone or being improperly coached at their location.
To help combat these potentially problematic issues during remote depositions, attorneys should first at the commencement of a remote deposition on the record invoke the Rule of Sequestration applicable to depositions (see e.g., Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982) to ensure a witness is alone at their location without other potential witnesses to the action present. Attorneys should next ensure no electronic devices are within reach of the witness, other than those permitted for the witness to access exhibits as needed. Attorneys must also note precisely on the record any improper behavior by the witness during the remote deposition, including any presence of non-counsel individuals with the witness, overt delay in answering a question, or unapproved use of electronic devices during the deposition.
While in-person depositions are the overwhelming preference of litigators, attorneys must be prepared to conduct and attend remote depositions during COVID-19 and after the pandemic is over. Familiarity with remote depositions will present new opportunity for practitioners to offer a more efficient and cost-effective alternative to in-person depositions for non-local and/or non-primary witnesses.
Mason T. Nettleton is a shareholder in the commercial litigation and family law practice groups at Fowler White Burnett. In his practice, he focuses on complex financial and evidentiary issues. Contact him at mnettleton@fowler-white.com.