By Helene Wasserman and Nathaniel Jenkins

Law360 (October 1, 2020, 1:10 PM EDT )

Helene Wasserman

Nathaniel Jenkins

If someone had told us in February that most, if not all, depositions taken this year would be done remotely, we would have quizzically looked at that person as though they had grown a second head. But that has become our reality, our new normal.

While necessity is the mother of innovation, attorneys have been tasked during the COVID-19 crisis with not only using their existing expertise to represent clients navigating litigation during these challenging times, they also have needed to fully develop skills previously reserved for only extraordinary circumstances. One such skill is how to effectively and seamlessly take and defend depositions in a remote and socially distanced world.

Videoconferencing technology has existed for many years. Historically, its usage for depositions has been reserved for circumstances where travel between states, or countries, is not feasible, and depositions need to occur. And while not optimal, it served its purpose.

There may be some limitations on the efficacy of the process, in that it may not be as easy to gauge witness credibility, and it may be difficult to evaluate witness-attorney interactions. But overall, the process worked in its limited usage.

Now, this type of deposition is mainstream, and attorneys have needed to learn a new skill set. While many attorneys are hesitant, learning remote deposition skills is essential to being able to afford clients proper representation. The skill set that is the topic of this article is how to effectively use exhibits during a remote deposition.

In previous, limited remote depositions, the parties typically agreed in advance to the parameters of the deposition, exhibits were frequently sent in advance to a court reporter, who was in the same room as the deponent, and the deponent was shown the exhibits by the reporter as the deposition progressed. But in this COVID-19 era of fully remote depositions, the luxury of having the exhibits shown to the deponent by the reporter is limited, as the reporter and the deponent are not in the same place.

There are various ways to introduce exhibits at remote depositions.

Delivery of Exhibits in Advance of Deposition

First, decide whether you want to deliver your exhibits in advance of the deposition or wait until the day of the deposition. Whether you proceed with advance delivery of intended exhibits may depend on several factors, including the sensitivity of the documents and the testimony to be obtained, reasonableness of opposing counsel, and the types of documents being presented.

If your intended exhibits are prepared days prior to presentation, they can be delivered simply by email. They can be premarked if you are confident you will use all intended exhibits in the same order you have prepared them.

In the event there are no sensitive documents, or no smoking gun documents, and particularly if there are a limited number of exhibits, consider sending the documents in advance. It will make the deposition go more smoothly. We suggest this approach particularly if taking medical or other expert depositions. This could also work with third-party witnesses.

On the other hand, if you want to provide exhibits to opposing counsel prior to the deposition, but strategically you want to avoid allowing opposing counsel to know the identity or content of these intended exhibits, you can password-protect the files prior to delivering them to opposing counsel and the court reporter.

Give a password-protected file a generic file name and a unique nonsequential password that cannot be guessed by opposing counsel. This way, you can share the password if and when you're ready to introduce a particular exhibit.

This process allows you to deliver more documents than you may need to enter as exhibits in that it allows you to just use only those documents that you want to use during that testimony. The remaining documents will continue to be password-protected and inaccessible to opposing counsel.

This can be useful if you are unable to lay a proper foundation for a particular document, as you can refrain from giving the password for files that you may not be able to properly authenticate. However, note that providing password-protected documents in advance of a deposition can be cumbersome to manage. The goal is to make it easy and seamless, but be mindful of security and strategy considerations.

Whether the exhibits were physically mailed or emailed with password protection, the deponent will — or should — be able to open the document to review it during the deposition, while you ask questions through the videoconferencing program, no differently than you would in-person.

Delivery of Exhibits on the Day of Deposition

If, for whatever reason, you choose not to provide exhibits to opposing counsel in advance, it is time to start thinking creatively and learn about the technological resources available to you.

Many court reporting services provide intuitive exhibit sharing programs that will allow you to upload exhibit documents to a private server before or even during the deposition. Then, when you're ready, you can simply click a few buttons to introduce the exhibit and the document will appear on all participants' screens. You may also be able to ask the court reporter to show the intended exhibit on the screen.

You can then proceed to identify the document, and otherwise ask questions about the document while all those in the virtual room can see the document. Most of these programs allow the participants to download and print the exhibits, so your opposing counsel will be able to keep a copy after the deposition. If not, you can provide copies of the document to opposing counsel by email once the deposition is completed.

Some exhibit sharing vendors may have potentially beneficial features that allow the deponent to scroll, enlarge, write or draw on the document in live time on the record. However, before the deposition, it is critical that you practice using these types of programs and become comfortable using them.

Moreover, it is important to communicate with opposing counsel and the deponent beforehand to ensure that whatever device they are using to virtually appear at the deposition is properly equipped to run the exhibit sharing software, in addition to the videoconferencing platform. In other words, make sure that the deponent has downloaded whatever necessary software application before the day of the deposition.

Although the exhibit sharing programs are generally easy and seamless to use, the downside is that there will likely be a cost of using them for each individual deposition. Alternatively, a cost-effective and lower-tech way to deliver exhibits the day of the deposition is by using the videoconferencing platform's screen sharing feature.

Most videoconferencing programs, such as Zoom and Webex, have screen share capabilities that allow you to share your computer screen with the deposition participants. In this scenario, you can save intended exhibits to your local computer hard drive. When it comes time to show the exhibit, simply open the document you intend to introduce, so that you can see it on your screen, and then click the "share your screen" button.

Beware here: Make sure that you are only sharing the document window, and not your entire computer screen, to prevent the deposition participants from viewing any confidential or privileged information that could be in the background of your screen. For example, share only the Adobe Acrobat application screen to show a PDF document.

Once you confirm that the document is visible to witness, identify the document and ask your questions. You can then deliver the document to opposing counsel and the court reporter via email following the deposition. As a benefit, like delivering a password-protected document prior to the deposition, using this screen sharing feature allows you to have more documents than you may need to enter as exhibits, and you simply use only those documents that you want to use during that testimony.

Finally, it is absolutely critical — and this cannot be stressed enough — that whatever way you choose to introduce exhibits during the deposition, you communicate with opposing counsel or the deponent beforehand to inform them of how you plan to introduce exhibits, so that everyone can be appropriately prepared on the big day.

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Helene Wasserman is a shareholder and Nathaniel Jenkins is an associate at Littler Mendelson PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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