COVID-19 has changed how attorneys in New York City conduct discovery. While virtual conferences will likely remain with us, a greater impact has seen changes in depositions in this era of social distancing. Gone for now are the days when five lawyers would squeeze into a deposition room at a court reporter’s office in Queens and sit across the table from the witness, placing documents before the witness to review. Instead, depositions are conducted virtually on Zoom and other platforms. These changes require the defense attorney handling a deposition in New York City to adapt the preparation and approach in conducting depositions using the virtual platform.
Incorporating new areas of questions and modifying more traditional topics when deposing plaintiffs is essential. Now it is important to ask the witness if they have any documents in front of them and to pose questions about how they prepared. In addition, with everyone at a distance, there is a greater risk that the witness will be coached during the deposition. Always ask the witness if they are texting with their attorney or otherwise communicating during the questioning and breaks. Once the deposition begins, the attorney needs to observe where the witness is looking. Are they looking at the camera or at their phone reading a text message from their attorney? Be mindful if a family member enters the room to avoid improper coaching or distractions.
Attorneys must be creative when evaluating a plaintiff whose deposition is conducted virtually. As always, the attorney needs to read the body language of the deponent. Doing so over the virtual platform requires a different approach than in the past, and in most instances is greatly limited based on the view of the camera of the deponent. Due to the fact that many deponents are testifying virtually from their homes, however, the insurance defense attorney should pay attention to any behaviors the deponent may exhibit due to their comfort in that setting.
Producing a witness also has its challenges in this virtual world, and further preparation is always necessary. The attorney must ensure the witness can access the platform and participate in the virtual deposition. Does the witness have a computer which includes a camera? If they are testifying in their home, do they have adequate Wi Fi? And is the chosen court reporter familiar with screen sharing and the relevant technology to avoid delays once the deposition starts. If a photograph, contract, or other documents will be shown to the witness, these exhibits should be identified prior to the deposition and provided to the court reporter in order to permit screen sharing during the deposition. One should also make sure the parties are in possession of the exhibits that will be introduced.
As the deposition proceeds, the attorney should also be prepared to address any technical issues related to Wi Fi, microphones, and background noise. Witnesses are often told to “wait until the question is finished before you give an answer;” this instruction is even more crucial, as speaking over each other may cause audio delays and no one can hear the answer. Also, attorneys could lose a connection and miss some of the testimony. Thus, it is critical to prepare the witness to expect these sorts of delays and the attorney should be prepared on the most efficient way to resolve the problems and avoid frustration on the part of the client.
By anticipating technology problems and improper coaching, the attorney can still conduct an effective deposition even one held virtually.
— Written by Partner Patrick Kenny