During the COVID-19 pandemic, the majority of American citizens were under a stay-at-home order. Some courts across the country have decided to hold remote depositions. Proponents of remote depositions argue that virtual depositions are an innovative solution to stay-at-home orders that would preclude an in-person meeting. However, critics point out that remote depositions impede one’s ability to effectively represent a client.
While some courts are still grappling with the idea of virtual depositions, others, such as one New York federal judge, have gone as far as to declare a standing order that all depositions may be taken remotely. In fact, the technology needed to take virtual depositions has existed for over a decade. Nonetheless, before the COVID-19 pandemic, remote depositions were not widely adopted in courts. Different courts have been limited by state notarization laws, which widely differ. For example, some states require notaries to be physically present with a witness when swearing them in for a deposition, which makes virtual deposition impossible. To combat these issues during the pandemic, some governors have issued emergency orders, which authorized remote notarization.
Looking into the Future
Virtual depositions are more convenient than their traditional counterparts. This is especially true when travel is prohibitive. However, remote depositions do come with a catch. Video calls can sometimes get cut off with litigants missing potentially imperative information. Another fear is that the opposing party may have authorized communication with a witness, while the witness is being deposed. It is also more difficult for lawyers and witnesses to use and observe body language virtually.
As some states are moving from a “red” phase to a “yellow” phase, virtual depositions courts might help courts and lawyers ease back into a new normal. Although, it remains unclear how the practice of remote depositions will carry on as courts begin to reopen.
Topics: Deposition, Litigation, Litigation Finance, Virtual, Remote
Steven M. Auvil & Tamara Fraizer, No Excuses: Remote Depositions Required in the Age of COVID-19 The National Law Review (2020), https://www.natlawreview.com/article/no-excuses-remote-depositions-required-age-covid-19 (last visited May 24, 2020).