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  ABA Journal

October 2000

Click Onto World Wide Web Deps
Services offer real-time advantages, but they're tempered by ethics issues

By Hope Viner Samborn
ABA Journal

Time and space are related, as we all know, and it's a relationship that is paying off for attorneys.

Companies are taking advantage of the Internet's ability to beam information across the globe as an event unfurls to let lawyers look in and even hear depositions from the privacy of their own conference rooms. All it takes is a click of the mouse.

Lawyers can also send questions or other information privately to the attorney deposing the witness. And, says Jay Jackson, president and co-founder of I-DEP, a Chicago-based Internet deposition service, "They can do it from the comfort of their offices and they are not shut down for two days having to fly from here to there."

I-DEP, launched in April, is among a handful of Internet deposition companies that vary in the services they provide. I-DEP, for example, allows attorneys to view depositions along with real-time transcripts of a proceeding.

DepoCast, available through Arizona-based LegalSpan.com, offers both real-time video and audio. Denver-based realLegal.com (formerly PubNETics) offers only a real-time transcript, but the company plans to team with another firm to provide video.

Easy Access

All the services allow any observer anywhere to view the deposition, including attorneys in the firm, in-house counsel or expert witnesses. Generally, only a computer and browser are needed, though some attorneys will need to download a free Windows Media Player. Once on the service's Web site, users enter a password and ID to log into the deposition.

Audio and video appear in a corner of the computer screen. In another corner, the transcript will be streaming along in sync with the video. A list of those attending appears, as does a chat room, which allows those monitoring the deposition to send and receive private messages from the attorney conducting it. The secured chat room also lets individuals from either party send private or group messages among themselves. Those messages may be archived. Two-way audio also is available.

Afterward, the transcript may be made available for later review. It also can be imported into programs such as Summation and LiveNote for indexing, annotation and highlighting of transcripts in real time. RealLegal allows users to highlight transcripts running in real time; I-DEP plans to add that feature, as well as a word search.

Large firms involved in multiparty litigations seem to be the busiest users of electronic depositions, since the service allows them to send only one representative, says I-DEP's Jackson. Firms also use the service when the deposition is of a peripheral witness of whom they do not expect to ask questions.

According to the ABA's 1999 Legal Technology Survey, greater than 20 percent of lawyers responding say they use real-time transcriptions. But Jackson concedes it is not appropriate for all cases. "It's not for the lead attorney in a very important deposition," he says. H. Thomas Wells, immediate- past chairman of the ABA Section of Litigation, agrees. "I find it hard to believe that I wouldn't want to personally attend a deposition that my client is attending or I was giving," says Wells, of Birmingham, Ala.

"There is something about eye-to-eye contact that you cannot replicate via the Internet or videotape. You get a better assessment of the witness, his or her body language and other nonverbal clues in person, on breaks in the hall or from their general appearance and demeanor. You can't pick that up other than in person."

Value and Versatility

One advantage, Jackson maintains, is cost. The service allows multiple attorneys, experts and clients to be online at once, without the expense of traveling to the deposition. The service also lets individuals monitoring the depositions to research information and provide it to the deposing attorney without the distraction of getting up from the room. Also, "The expert is able to give the attorney information and suggest lines of questions," says Jackson.

However, some local, state or federal rules may have to be amended. For example, should all individuals online be listed as attending the deposition?

"The rules were written with face-to-face depositions in mind," says Wells. If an expert physically attends a deposition, it is noted in the transcript. However, an expert could participate electronically without notice to the other side.

Another issue is whether these written online communications between the expert and the attorneys are discoverable, as are other documents provided by the expert. In addition, such monitoring could allow witnesses to listen to other witnesses' testimony without disclosure to the other side. That is a potential abuse, Wells says.

"It is an example of technology coming up in an area where I don't think that the rules contemplated it," says Wells.

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