If work-from-home dress codes are any indication, remote arrangements require us to walk the line between flexibility and abuse. Pajamas from the waist down? Why not! Joining a video conference in your robe? Only if you’re the judge.
Similar issues arise from the pandemic-driven pivot to remote depositions. To prevent cases from stagnating, many courts, including New York state and federal courts, have allowed—and even ordered—depositions to proceed remotely due to these extraordinary circumstances. Virtual platforms permit deposition attendees to attend remotely from different physical locations than where the attorney taking the deposition is located.
Unfortunately, remote depositions do have their drawbacks. For starters, there are logistical issues. Despite advanced remote deposition technology, there are sometimes speed bumps during the examination. For example, loading larger exhibits can cause lagging and hinder questioning the witness. And practitioners that are used to reporters marking exhibits may sadly discover that this burden now belongs to them.
But there are more serious problems than the logistical delays posed by remote depositions. As many of us who have attended a tedious Zoom meeting can attest, it is sometimes difficult to resist the urge to send a quick email, catch up on the news, or (at risk of self-incrimination) scroll TikTok outside of the webcam’s view. While the compulsion to multitask is relatively harmless, a more unscrupulous witness can take advantage of the remote set up to refer to notes or other improper materials. And where a defending attorney is present with the witness, avenues for abuse swell.
In one extreme case, the defending attorney joined his witness, yet remained offscreen, where he could be heard whispering just before the witness answered. In that case, Shimkus v. Scranton Quincy Clinic Co., LLC, No. 19-CV-3354 (Ct. Com. Pl. Lackawanna Co., Dec. 7, 2020), several parties raised the issue with the court, which reviewed video clips of the deposition and determined the conduct warranted sanctions. The court ordered the witness and attorney to personally reimburse all other counsel for their time in raising the issue and referred the matter to the Disciplinary Board of the Supreme Court of Pennsylvania.
Legal professionals have recognized the vulnerability of an unsupervised witness, turning to remote deposition protocols to clarify deposition expectations. New York’s Commercial Division Advisory Council, for example, recently proposed a new Commercial Division rule that would explicitly authorize and regulate remote depositions. The proposed rule includes a form protocol that would require each person attending the deposition to be clearly visible to all other participants and would instruct counsel not to privately communicate with the witness on the record—except to determine whether privilege applies. It would also require the witness to shut off all electronic communication while on the record. The form protocol is drafted as a proposed order and is intended to be entered prior to the deposition.
Of course, diligently drafting a remote deposition protocol isn’t the end of the parties’ obligations—they still need to vigilantly monitor for misconduct. After all, the defending attorney in the Shimkus case coached his witness despite a protocol requiring all participants to be on screen and prohibiting witness coaching. Parties must watch for signs of distraction or malfeasance, which may include the witness shifting focus prior to answering, glancing down or to the side frequently, and repeated movements, gestures, or noises from opposing counsel. The questioner might also consider using multiple screens and cameras. This will enable counsel, as in live depositions, to see exactly what is in front of the witness during questioning and what, if anything, the witness is reviewing during questioning.
At minimum, a secondary witness camera is a good idea, and is as simple to implement as placing a second laptop or device at an angle that displays the witness and their surroundings, including all screens and attorneys present. It just might be the next best thing to taking a deposition face-to-face—and it might even be the nudge some of us need to start wearing real pants again.