Tips and Best Practices for Depositions by Videoconference Technology by Eric N. Stravitz and Lawrence E. Walker, MAJ Trial Reporter (Special Issue 2021)

The purpose of this outline is to provide our members with considerations and options when taking or defending depositions via videoconference technology (e.g., Zoom). Some of the points below may not be appropriate for a deposition of a defendant by videoconference technology in a basic auto tort case but may work well for an adverse expert in, for example, a medical malpractice case.¹

Equipment / Technology

• Laptop with camera
  • Better Alternative: Webcam
    • Aftermarket webcams provide superior performance.
    • One example: Logitech C920e² – plug and play³; works very well. But fiddle with its placement before the deposition begins.
• Lighting
  • Examples: Lume Cube Broadcast lighting kit (you may want two—one for each side of your computer) or a 6” LED ring light with tripod.
• Sound
  • Detached microphones are typically superior to a computer’s built-in microphone.
    • One example: Yeti Nano—plug & play.
  • Additional Alternative: Calling into the Zoom meeting with your phone. This provides superior sound and allows the use of earbuds or wireless ear pieces. Remember to decline the computer audio choice if using a cell phone for sound.
    Using both will cause an annoying echo.
• Green Screen
  • One example: Emart Green Screen Collapsible
  • Combining with the use of a virtual background allows you to shield your workspace from view.
• USB hub – plug into USB 3.0 interface/slot on computer
  • Type-C for Mac
  • Type-A for PC
• Connectivity
  • Having an excellent internet connection is an important part of making a record. A hard-wired CAT-5 or CAT-6 connection is ideal.
  • When using Wi-Fi, ensure you have a strong signal. (Googling “Wi-Fi speed test” will display various websites that can check the speed of your connection.) If working from home, make sure others in your house are not using up the bandwidth, such as by streaming videos or gaming.
  • If a bad lightning storm is likely to occur, keep in mind that you may need to reschedule.
• iPad or other Tablet with stylus: Use to create on the spot visuals.
• The Wirecutter and CNET websites have proven useful for evaluating tech.

Noting Deposition

• The deposition will be taken via videoconferencing technology and subject to court reporting
• Videoconferencing technology has built-in videorecording capability. This is different than hiring a videographer to record a deposition with video. If you plan to take advantage of this capability, your deposition notice should so state.
  • Note: If you do not wish to have your client’s deposition on video, you may want to avoid noting the defendant’s deposition as a video deposition because doing so may cause defense counsel to reflexively video your client’s videoconferenced deposition.
• [Form notice attached]

Mindset for Deposition

• You are preparing for trial.
  • This makes discovery more fun and will cause you to better focus.
• You want to leave the deposition with clips (if you video) you can use at trial.
• Willingness to prepare is key
  • These depositions require greater planning because you cannot place an exhibit in front of a deponent as easily with a Zoom deposition.
  • You must practice working with Zoom before doing your first Zoom deposition.
    • Caveat: Unless you hire a technician—typically from a court reporting company (in which case it is still strongly advised until you have achieved a level of comfort).

Exhibits

• Extra prep required for Exhibits
  • Scan each exhibit in color
  • Convert each exhibit to PDF
• Options
  • Old School: Provide to everyone, including court reporter in advance
    • This can be done via:
      • mailing a disc;
      • emailing exhibits;
      • file-sharing exhibits via DropBox, (Microsoft) One Drive, Google Drive, etc.; or
      • having the court reporting firm handles the exhibits.
        • Caveat: Check pricing as this may cost your client hundreds of dollars more.
          • But it might be a good option for your first Zoom dep.
  • New School:
    • Zoom: Share Screen to your computer (PC or Mac)
      • Label exhibits Ex. 1_police report diagram, Ex. 2_photo of…
        • This will cause your computer to organize them sequentially
    • iPad using the Trial Pad app (can be used with PCs or Macs)
      • Load all exhibits into Trial Pad (this trial presentation software only works with iPads)
      • Label each exhibit so you can identify it
      • Share Screen to your iPad
  • Must you share all exhibits you intend to use at the deposition with opposing counsel before the deposition begins?
    • Our view: The calculus here is the same as for a non-Zoom deposition. In other words, we would not ordinarily share all exhibits already produced in discovery or that will not be used for impeachment unless this has been previously agreed upon, but would carefully weigh the pros and cons of holding back any exhibits not produced in discovery—for what at trial would be called impeachment purposes— until the time it is revealed during the deposition.
  • Stop sharing an exhibit when you are done asking questions about it.
  • Email all exhibits to court reporter and all counsel within an hour of deposition ending.
  • Pitfalls
    • One court reporter had proprietary Zoom software. In it, her company had purposely disabled the recording feature for security reasons. Thus, they would not allow me to record the deposition if they hosted the deposition using their propriety Zoom software. The workaround: We agreed that I would host the deposition and supply the Zoom link to all participants (court reporter, counsel and deponents).
      • If you are going to host, you will have to register for a paid Zoom account so you have unlimited minutes. Various options can be found here.
      • Hiccups WILL occur. Expect them. When they occur, breathe deeper and more rhythmically. Viewing them as an opportunity . . . to show opposing counsel that you won’t be rattled . . . helps. In one deposition, the deponent had to leave the Zoom and log-in again twice because her connection degraded.

Prep Court Reporter

• Make sure you instruct your court reporter that, if during the course of the deposition, she does not hear an answer to any question that is posed, she MUST let the participants know. Why? Zoom technology sometimes allows only one voice to be heard. This can occur during depositions, when lawyers interpose objections and the court reporter has not heard a quick “yes” or “no” answer over the objection. In fact, it is possible that you see the deponent’s lips moving and hear the answer yourself but the court reporter has not heard it. If the court reporter does not tell you this, you will receive an unpleasant surprise when you read the transcript and find that no answer was transcribed to a key question.
  • Practice Tip: In addition to preparing the court reporter for this possibility, be proactive during the deposition: If you think this may have occurred during your deposition (or regarding a favorable answer when you are defending a deposition), ask the court reporter on the record if she got the answer.
• Make sure court reporter will gain everyone’s consent on the record at the start for the deposition that the court reporter is not physically with the witness and that everyone consents both to this and to conducting the deposition via Zoom technology.

Prep With Your Client at Least in Part Using Zoom

• You do not want to discover at the time of the deposition that your client has an inappropriate background or something unsavory happening at their location that can be heard or seen during the deposition.
• If nervous, suggest to your client that he or she keep a favorite photograph or talisman nearby but off camera. One client who was extremely nervous about her Zoom deposition in a personal injury case put pictures of her three children in their Marine uniforms around her monitor. The photographs—only visible to her—kept her calm and her deposition went well.

Zoom – General Tips

• Make sure 1-on-1 chats are disabled
• If working from home, prep your housemates for the need for quiet. This includes making arrangements for any loud pets.

If Recording a Zoom Deposition

• Record in spotlight—NOT gallery—view. Play with this before the deposition so it makes sense to you.
• “Pin” the deponent and yourself and record both (assuming included in your dep notice)
  • This allows you to prepare dep clips for use at trial that look like a cable TV news interview with both heads on the screen side by side
  • You will likely need a professional to help you extract these clips into a trial presentation format
    • You will also want to get them to the Court and opposing counsel pre-trial so you don’t draw an objection if using them, for example, during an opening statement.
• If you cannot record both but your notice allows you to record the deponent, make sure you remember to “pin” and “record” the deponent.

Taking Deposition

• Initial Agreements to Put On The Record
  • That this deposition will be taken by Zoom
  • That the oath can and will be administered remotely
  • That the Court reporter will prompt answers he/she did not hear.
• Initial Questions
  • Establish who is in room or that no one else is.
  • Get agreement that deponent will not get any messages from anyone during deposition.
    • No chat, text or any other messages.
  • Get agreement that the deponent will not use his or her computer for any purpose during the deposition other than for conducting the deposition via [insert the technology being used].
• Witness Control
  • Consider writing the deponent’s words on a chart or board and sharing it with the participants for witness control. This tip comes from Zoe Littlepage, Esq.

Potential Additional Measures for Expert Depositions

• Agree in advance that anyone on the Zoom be announced on the record and remember to do this at the beginning
• If you want to communicate with your client or co-counsel during a deposition you are taking:
  • Use a separate device or software to do so (texting might not work as well as a device with a keyboard); and
  • If you need to confer, walk out of the room and close the door.
• If deposing a sneaky adverse expert, consider placing an extra video camera in the room to record his or her computer to ensure that no cheating is taking place.

Tips to Assist Court Reporter and Get a Better Record

• Avoid overlapping conversation so that words are not cut off and lost. There may be a delay between speaking and being heard due to potential lag of the audio over the internet. So…pause a second or two after someone speaks before beginning to speak yourself. And remember to include a reference to this pause in your instructions to the deponent.

Additional Resources

• Zoom Help Center
• A 4-page paper on Zoomgov video conferences, prepared for Federal District Courts contains useful information, some of which is pertinent to Zoom depositions. To find the paper, google its title: “Preparing to Participate in a Zoomgov Video Conference.”

---

In the Circuit Court for Prince George’s County, Maryland

ELIZABETH WINDSOR :

                            Plaintiff, :

                                        v : Case No. CL2020-0000

PHILIP MOUNTBATTEN :

                       Defendant. :

Notice of Video Deposition by Videoconference Technology

Plaintiff Elizabeth Windsor, by undersigned counsel, in accordance with the Maryland Rules, will take the deposition upon oral examination of the following person, before an officer authorized by law to administer oaths, on the date and at the time indicated below:

Deponent: Defendant Philip Mountbatten
Date and Time: January 28, 2021 at 11:00 a.m.
Place of Deposition: All participants will be attending from remote locations.

This deposition will be transcribed by a court reporter who will participate remotely and who will swear in the Deponent remotely. There will be a video-recording made of both the Deponent and the questioning lawyer for the Plaintiff. Plaintiff will make a video-recording of any exhibit or visual aid used during the deposition. Any exhibits will simultaneously be shared/made visible to the Deponent and all attending counsel.

If the technology fails to perform adequately, the undersigned reserves the right to proceed telephonically.

This Deposition will be before an authorized Notary Public, remotely by agreement.

The undersigned or Court Reporter will generate the Zoom or other link within a reasonable time before the deposition.

This deposition is for discovery and/or use at trial and will continue from day to day until completed. Plaintiff reserves the right to present this Deposition at trial via split-screen technology.

Counsel for the Deponent is requested to contact the undersigned by email at least seven (7) calendar days before the deposition to confirm for him-or herself and the deponent, the necessary email addresses and back-up phone numbers so that access can be provided.

Respectfully submitted,
STRAVITZ LAW FIRM, P.C.

By: ___________________________________
Eric N. Stravitz (CPF No. 9206170290)
4601 Presidents Drive
Suite 120
Lanham, MD 20706
O: (240) 467-5741
F: (240) 467-5743
E: eric@stravitzlawfirm.com
Counsel for Plaintiff Windsor

In the Circuit Court for Prince George’s County, Maryland

ELIZABETH WINDSOR :

                            Plaintiff, :

                                        v : Case No. CL2020-0000

PHILIP MOUNTBATTEN.:

                       Defendant. :

Notice and Certificate of Service

I HEREBY CERTIFY that on this 17^th day of December, 2020, a true copy of Plaintiff’s Notice of Video Deposition by Videoconference Technology of Defendant and this Notice were sent via First Class Mail, postage prepaid to Margaret H. Thatcher, Esq., 10 Downing Street, Lanham, Maryland 20706, Counsel for Defendant Mountbatten.

Respectfully submitted,
STRAVITZ LAW FIRM, PC

By: ___________________________________
Eric N. Stravitz (CPF No. 9206170290)
4601 Presidents Drive
Suite 120
Lanham, MD 20706
O: (240) 467-5741
F: (240) 467-5743
E: eric@stravitzlawfirm.com
Counsel for Plaintiff

---

¹Disclaimer: This outline presents an “array” of things that might be done, and the sample deposition notice is not presented by the MAJ, but as the authors’ sample to be varied as necessary. Readers need to use their own legal analysis when using this outline and the sample notice.

² The C920s includes a privacy shutter for when it is not in use. If you store it after each use, this feature won’t matter.

³ Any reference to a “plug and play” device means that the device will work after being plugged into a USB slot or hub without needing software to be downloaded to your computer.