Antitrust deposition and Social Distancing

This crisis has made us adapt in unforeseen ways. I attended today the webinar “Litigation Tactics for Social Distancing: The Remote Deposition” that was organized by American Bar Association (ABA), Antitrust Law Section, and I would like to share some points that were made.

The components and the requirements for a remote deposition were already in place, but weren’t being used in as large scale as now. It has been interesting to see the shift towards video or audio testimony, not due to cost or logistic reasons, but rather it becoming the norm in these unprecedented  times. There may also be some state specific legislation that has to be adapted, so it is important to check any case specific situation.

“It is all about pre-preparation”, emphasizing practice, familiarity. If possible, one should hop online before the beginning of the deposition to check features, devices, discuss some of the logistics. Don’t experience the interface for the first time during your deposition. Law firms can create a “deposition kit”, with a webcam, a reliable laptop, ready to go. Also, make sure there is a plan B, a secure conference phone line for example.

Courts will be expecting collaborating even more than usual in these challenging times. Speak one at a time (especially in audio/telephonic). There is the lack of physical queue, so additional time is needed. Wait for a minute before answering questions to make sure the other person is done. Court reporters can’t miss two or three words, but they also don’t’ want to be interrupting the deposition to get the record they need. Given how easy it is to do video now, it is highly encouraged. Patience is fundamental from all parts, allow time for objections, and guarantee there will be no issues with accepting testimony when courts reopen.

In terms of getting ready for depositions, make sure to talk through the logistics ” what is the background going to look like?”, “don’t become too comfortable” “set up a room in your house that they can treat it as different experience, that can feel like a deposition room” “if possible communicate in a different room during breaks, not to risk sharing confidential information.” Keep in mind the file formats you’ll be using, and test them in advance.

Be careful with devices such as Siri, Alexa, Fitbit, and make sure they are turned off, as those devices can spontaneously turn on and be either disrupting or problematic in the sense of “listening into” confidential information, or off record. Also, be aware of the functionalities of the platform, which ones can be turned on and off, and given the context, which ones should be activated (e.g. ability to download files and exhibits in highly confidential cases with sensitive information).

Bottom line is that times are rapidly changing, and we all have to adapt to this new way of conducting business. As with any crisis, there is also the possibility for growth and changing the status quo.







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