December 6, 2021

Volume XI, Number 340

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December 03, 2021

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Should Virtual Depositions Survive the Pandemic? The Answer is Yes and No.

As the “new normal” of pandemic virtual legal proceedings appears to be waning, a question arises as to which, if any, practices initially born out of necessity, but no longer so, should continue to be utilized. One such device previously employed sparingly, but which became de rigueur during COVID, is the virtual deposition. In some but not all circumstances, virtual depositions can remain an effective tool for litigators.

The critical considerations in determining whether to continue using this mechanism will hinge on the purpose of the deposition and the stature of the particular witness. For example, if a deposition is being conducted for basic discovery purposes, i.e., understanding the broad strokes of a dispute, or determining generally what the opposing side knows or has, it might make sense to conduct it virtually. What may be obtained from such witnesses over video-link likely would not be enhanced by conducting the depositions in person. Moreover, the technical hiccups sometimes incidental to a video deposition, such as audio deficiencies and temporarily frozen screens, likely would not diminish the value of such “low-stakes” testimony.

But, if the purpose is to obtain testimony that will be presented to a trier of fact, there is no substitute for a live deposition. Like cross-examining an opponent’s witness during a trial, being in the same room to control that witness without the delay of a video feed or the interference of opposing counsel who may be present with the witness while you are not, makes a world of difference. Due to the unavailability of witnesses, cases may be won and lost during depositions. Consequently, it is important to treat these depositions as if you are eliciting trial testimony. Doing so live will give you the best chance at a successful examination.

A second important consideration is the stature of the witness. A virtual deposition would certainly be appropriate for a low ranking company employee with no ability to bind an organization, or a document custodian whose elicited testimony would likely be mechanical in nature. However, the deposition of a critical fact witness, high-ranking company official, or corporate designee most definitely should be conducted live, if possible. There simply is no substitute for looking a witness in the eyes during questioning to gauge their credibility, or obtaining a face-to-face assessment of their composure and demeanor. That type of evaluation is simply not possible over a video-link, particularly given the possibility of technical mishaps.

These considerations should not be viewed in a vacuum, of course. For more and more clients, a primary concern is legal cost containment. For those attorneys with national practices, being able to conduct the video deposition of a witness who resides on the other side of the country surely will provide significant cost savings for such a client. Similarly, a busy litigator’s life will be made easier by having the option of deposing a witness virtually, rather than committing to otherwise avoidable travel time.

Like most legal conundrums, the answer to this question is not clear-cut. But, having options like those outlined above to address the different types of witnesses and circumstances will increase the likelihood of eliciting valuable testimony.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 188
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About this Author

Robert M. Travisano Attorney Newark Business Litigation
Member

ROBERT M. TRAVISANO is a Member of the Firm in the Litigation practice. Based in the firm's Newark and New York offices, he concentrates his practice in the area of complex business disputes. In 2013, he was named to the New Jersey Rising Stars list in the areas of Business Litigation and General Litigation.

Mr. Travisano:

  • Represents institutional clients in the federal and state courts of both New York and New Jersey

  • Litigates matters involving shareholder and partnership disputes

  • Defends...

973-639-8289
Thomas Kane Healthcare Lawyer Epstein Becker Green Law Firm Princeton
Member of the Firm

Thomas Kane is a Member of the Firm in the Litigation and Health Care and Life Sciences practices, in the Princeton office of Epstein Becker Green. In 2017, Mr. Kane was recommended by The Legal 500 United States in the area of Healthcare: Service Providers.  

Mr. Kane:

  • Has extensive experience representing clients in a wide variety of industries, including health care, finance, insurance, pharmaceuticals, and retail services matters, before federal and state courts at both the trial and appellate levels, administrative bodies, and various arbitral forums
  • ...
609-455-1542
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