What Virginia Litigators Should Know About Remote Depositions

This article appeared in the Summer 2023 issue of the VBA Young Lawyers Division’s Opening Statement. By Jared A. Tuck[1]

The COVID-19 pandemic forced law firms around the world to transition their practices online.[2] Now, although courts have largely resumed their regular, in person proceedings,[3] many lawyers and firms have kept tools from the pandemic in their toolbox. One such popular practice is the continued use of remote platforms for depositions. Recognizing that remote depositions are here to stay, this article provides an overview of the following: (1) the law on remote depositions, (2) the advantages and disadvantages of remote depositions, and (3) practical tips and advice on conducting remote depositions.

THE LAW ON REMOTE DEPOSITIONS

Federal Law

Default Rule. Federal Rule of Civil Procedure 30(b)(4) states that “[t]he parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” Importantly, under the plain language of Rule 30(b)(4), the default rule in federal court requires in-person depositions. Thus, in federal court, a party needs either a stipulation or court order to take a deposition by remote means.

Breadth of the Rule. Rule 30(b)(4) only specifically enumerates that the court may allow a deposition “by telephone;” however, the phrase “other remote means” creates a catch-all that favors broad judicial and party discretion as to the format for taking remote depositions. The rule’s language suggests that any method of communication on a telephone could be permissible—including Twitter, Facebook, Instagram, Snapchat, or other social media platforms. However, federal courts have defined key factors that would likely prohibit such methods.

Forcing a Remote Deposition. A party seeking to conduct a remote deposition in federal court “should bring a Rule 26(c) motion for a protective order seeking the permission of the court to do so.”[4] When deciding whether to grant leave for a remote deposition, the court must consider “whether use of [remote] means would reasonably ensure accuracy and trustworthiness, and whether the opposing party would be prejudiced.”[5] Generally, federal courts apply a burden-shifting framework in which the party moving for a remote deposition must present a “legitimate reason” for the request before the burden shifts to the nonmoving party to show why the deposition should not be conducted remotely.[6]

In federal court, it is also important to keep in mind Federal Rule of Civil Procedure 1, which states that the federal rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” (emphasis added). Ultimately, federal courts favor the use of remote depositions and liberally grant leave to take a deposition remotely.[7]

Virginia Law

Default Rule. Supreme Court of Virginia Rule 4:5(b)(7) states as follows: “Unless the court orders otherwise, a deposition may be taken by telephone, video conferencing, or teleconferencing.” In Virginia, unlike in federal courts, the default rule permits remote depositions unless the court orders otherwise.

Breadth of the Rule. While Rule 4:5(b)(7) purports to provide an exhaustive list of permissible methods for conducting a remote deposition, the Virginia rules are more liberal than they initially appear. Supreme Court of Virginia Rule 4:7A(a) clarifies that the list in Rule 4:5(b)(7) is not actually exhaustive: “Any depositions permitted under these Rules may be taken by audio-visual means including, but not limited to, videoconferencing and teleconferencing . . . .” (emphasis added).

Preventing a Remote Deposition. Under Virginia law, no motion is necessary to take a remote deposition because the rules expressly allow remote depositions unless the court orders otherwise.[8] To prevent opposing counsel from taking a remote deposition, the form of the motion is a motion for a protective order.[9]

Summary: Federal vs. Virginia Courts

Federal courts are the best fora for those seeking to conduct traditional, in-person depositions. However, federal courts still tend to favor remote depositions when parties litigate the issue. Virginia courts are the better fora for those seeking to conduct remote depositions. The limited Virginia case law suggests that parties rarely seek a court order for an in-person deposition.[10]

ADVANTAGES AND DISADVANTAGES OF REMOTE DEPOSITIONS

The primary advantages of remote depositions are lower costs, relative convenience, and increased control over documents and exhibits. Reduced travel costs can be particularly significant for attorneys working on a flat or contingency fee basis. Screen sharing is another advantage of remote platforms because the lawyer has greater control over what part of a document or exhibit the witness reviews.

On the other hand, remote depositions present clear disadvantages, such as difficulty of observing the demeanor of witnesses and opposing attorneys, risk of disadvantage to remote counsel, technology and connection issues, and logistical issues. It can be much harder to observe a witness’s body language remotely, and remote platforms can facilitate malfeasance, such as improper coaching of a witness.

PRACTICAL TIPS AND ADVICE

Attorneys should ensure that any remote depositions they conduct take place efficiently, effectively, and without prejudice to either party. Be sure that all participants know the correct timezone for the deposition. Mute your microphone before and after the deposition and during breaks and be just as careful about your words as in an in-person deposition—even when muted. If defending a deposition, keeping your microphone unmuted may help you timely voice your objections. Ensure that you are well-lit and positioned clearly within your camera’s frame, with no distractions in the background. Test your connection and other key functions before the deposition begins.

Many practitioners advise recording remote depositions.[11] Other precautions are often prudent, such as asking the witness to agree not to communicate with anyone but the attorneys and the court reporter during the deposition and limiting the witness’s means of such communication. When defending a deposition, in-person depositions are preferable due to improved witness comfort and increased ability to manage objections, witness responses, and documents. It is always wise to discuss logistics, such as camera positioning, with opposing counsel prior to any remote deposition.

Love or hate them, remote depositions are a continuing reality for modern lawyers. Virginia practitioners should remain conscious of the law governing remote depositions and differences in relevant federal and state law. Likewise, it is critical to stay informed of best practices for conducting and defending remote depositions to serve one’s clients as effectively as possible.

[1] I would like to thank Teddy B. Paisley, III for his assistance in drafting and editing this article. Teddy is a Summer Associate at Gentry Locke Attorneys and a rising 3L at Liberty University School of Law.
[2] See, e.g., Debra Cassens Weiss, More Big Law Firms Close or Require Remote Work Because of Coronavirus Threat, ABA Journal (March 16, 2020), http://www.abajournal.com/news/article/ more-biglaw-firms-close-or-require-remote-work-because-of-coronavirus-threat.
[3] See, e.g., Kevin Brueninger, Supreme Court Will Resume In-Person Arguments This Fall After Switching to Phones During Covid, CNBC (Sep. 8, 2021), https://www.cnbc.com/2021/09/08/ supreme-court-will-return-to-in-person-arguments-in-the-fall-after-covid-changes.html.
[4] Impulsora De Marcas E Intangibles v. Dos Amigos, No. 6:19-CV-00453-ADA-JCM, 2020 U.S. Dist. LEXIS 145434, at *2 (W.D. Tex. June 26, 2020).
[5] Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D. Kan. 1996) (emphasis added).
[6] Id.; Jahr v. IU Int’l Corp., 109 F.R.D. 429, 431 (M.D.N.C. 1986).
[7] Brown v. Carr, 253 F.R.D. 410, 412 (S.D. Tex. 2008) (“Generally, leave to take depositions by remote electronic means should be granted liberally.”).
[8] See Va. Sup Ct. R. 4:1; Lemus v. Talbert, 108 Va. Cir. 1, 1 (2021).
[9] See Lemus, 10 Va. Cir. at 1.
[10] Only four Virginia cases cite Rule 4:5(b) (7), and in none did the parties litigate whether a deposition should be in-person or remote. See Gillespie v. Davis, 410 S.E.2d 613 (Va. 1991); Lemus, 108 Va. Cir. at 1; Commonwealth Transp. Comm’r v. Cogil Corp., 67 Va. Cir. 398 (2005); In re Instrumentation Servs. v. Town of Victoria, 60 Va. Cir. 92 (2002).
[11] Both federal and state courts permit recording remote depositions. See Fed. R. Civ. P. 30(b) (3)(A); Va. Sup. Ct. R. 4:7A(d)(1).