Three P's of virtual discoveries: Preparation, participation, protection.
For many lawyers, preparing for and conducting examinations for discoveries is a matter of course. Travelling to the court reporter’s office for discoveries is often a welcome day out of the office and, in many instances, a lawyer’s first opportunity to meet face to face with their client and counsel for the opposing party.
Social distancing protocols implemented by court reporting offices as a result of the COVID-19 pandemic have required lawyers to quickly adapt their practices to the new reality of virtual discoveries. For some lawyers, virtual discoveries and mediations have been a part of their practice for years and the recent protocol is not new. But for others, there has been some reluctance to transition to a virtual practice during these times.
The following points offer tips and considerations that aim to assist counsel new to virtual litigation:
- Discuss with opposing counsel and your client which platform they would be most comfortable using. Reporting offices are also permitting counsel to have tests run in advance of the actual discovery to ensure counsel and clients can seamlessly connect.
- Confer with counsel and the court reporter’s office to determine what document sharing technology the reporting office is using. This will ensure seamless reference to Affidavits of Documents during the discovery.
- The process of marking Exhibits can still be accomplished virtually. In advance of the discovery, counsel should send the court reporter’s office PDF versions of exhibits they know will be referenced in advance of the discovery.
- Counsel should take steps to ensure the deponent is reviewing the correct document during the examination. If the deponent is referencing a physical Affidavit of Documents, this can be done by physically showing the camera what document the deponent has turned to. If the deponent is referencing a digital Affidavit of Document, utilize the screen sharing feature of Zoom or WebEx to ensure the deponent is at the correct tab.
- Ensuring that two or more people are not speaking at the same time is even more critical for virtual discoveries as doing so results in all speech becoming inaudible on the record.
- To have private and off record conversations with opposing counsel or clients during discovery, counsel should utilize the break out room feature offered by most platforms, including Zoom and WebEx. Discuss utilizing this feature with the court reporting office in advance of the call.
- Regardless of the forum, examining counsel must protect their client’s interests by ensuring questions put to a deponent are their own. Be alert to a deponent who is consistently looking off camera or looking to the same spot while answering. If this occurs, examining counsel should ask the deponent to identify what they are looking at off screen. Utilizing the screen sharing feature can also ensure the deponent is not receiving emails or reading from a document on their screen.
- Examining counsel must also protect their client’s interests by ensuring the deponent is not being influenced by others. Before beginning an examination, counsel should verify if anyone is in the immediate presence of the deponent by asking them to pan the camera around the room.
- To ensure only authorized recordings of the examination are made, counsel can ask that all home assistant devices, such as Google Home or Amazon Echo, and cell phones are disabled by all participants in advance of the call.