Video Depositions – the New Normal for the Age of Social Distancing

The Circuit Courts for St. Louis City and County have both issued Administrative Orders that approve of taking of depositions by video conference.  Both of these orders require that a party opposing the taking of a deposition by video conference, for that reason alone, has the burden to prove that the deposition not go forward (i.e., that the deposition notice be quashed).

At a Town Hall videoconference on April 16, Judge Rex Burlison, the presiding judge of the St. Louis City Circuit Court, made clear that, at least in the city, a party opposing the taking of a deposition by videoconference will have a difficult time convincing the court not to permit such deposition to go forward.  For now, at least, in the age of social distancing amidst fear of the COVID-19 virus, it appears that videoconference depositions will be the new normal.

However, there are real issues that need to be addressed concerning depositions by videoconference.  Perhaps the most important has to do with the security of the videoconference platforms used by court reporting services.  In a survey of several large national court reporting services and one smaller service, they all reported using Zoom for depositions, despite recent reports by credible sources that Zoom has been hacked and is not secure.  Unless and until these security concerns are addressed, I will oppose taking of depositions over Zoom (although other services may be more secure).  The security of depositions is of particular concern when depositions involve businesses’ confidential information or otherwise will address sensitive information.

There are also questions regarding the preservation of video and audio of depositions, including how this will be done, how parties can access any recordings, and whether storage of any such video and/or audio is secure.  Again, the security of recordings of Zoom conferences has also been reported to be an issue.

The presentation of exhibits, when there is no one in the room with the witness, can also be problematic, particularly if the deposition is document intensive.  While sending the documents to the deponent and opposing counsel in advance is a possible answer, this could eliminate any element of surprise.  Another solution is presenting the documents over the videoconference service (most allow documents to be displayed during a conference).  However, depending on the computers available to the deponent and attorneys, it might be hard to read any exhibit shared over the web.

In fact, if a deponent does not have access to a computer or poor internet connectivity, this could also present problems (for instance, I was on a Zoom call the same day this was written, and there were noticeable delays in the transmission of both audio and video during the call.)

It’s a brave new world out there, even for lawyers (who tend to be conservative when it comes to change in procedures).  Please forgive the glitches as we all learn together the best ways to use this technology.

For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

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