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  Trial Magazine

August 2001

News Trends
The next step: Taking depositions online

By Rebecca Porter

What if you could see and hear a witness being deposed, read the court reporter's transcript, and even ask questions -- as well as communicate privately with someone at the deposition -- without ever leaving your office? The technology to take depositions over the Internet exists. The band(width) wagon is just waiting for attorneys to jump on.

"I hope to use this technology extensively in the future. I believe online real-time depositions could result in significant savings of time and money, and should be more effective" than telephone depositions, said Timothy Jacobson of La Crosse, Wisconsin, who is involved in several cases with cocounsel scattered around the state. They are currently trying remote depositions using a local court reporter and LiveNote software to transmit the text over the Internet. And that's just the baby-steps version.

Courts in at least 17 states have rules governing video depositions, according to the National Center for State Courts. Some attorneys use this method, which works much like a video telephone. Each participant has a video camera, microphone, and speakers mounted on his or her computer. As the two participants speak to each other, their voices are carried over the network and delivered to each other's speakers, and the video images appear in a window on each participant's monitor. However, videoconferencing is expensive, allows only one-way audio, and ties participants to immobile equipment.

Currently, two states -- Colorado and Vermont -- have rules governing depositions "by any means," including remote electronic methods. Taking depositions over the Internet is now an option because of streaming technology, which allows video, text, and audio to play or display simultaneously. The technique transfers data so they can be processed as a steady and continuous stream. Since most Internet users don't have fast enough access to download large multimedia files quickly, there can be a time lag of seconds between a word's being spoken and its being heard in a remote location. With streaming, a browser can start showing or playing the data before the entire file has been sent, so there is no time lag during downloads.

Cutting-edge online deposition services, such as I-DEP and DepoCast from LegalSpan.com can stream separate signals containing audio, video, transcript, and message features directly to a desktop or laptop PC. Remote participants can see a witness in real time, ask questions and hear the response, read a real-time transcript as the court reporter types it, and send private messages to on-site and remote colleagues. The transcript of the proceeding can be imported into programs like Summation or LiveNote for indexing, annotation, and highlighting; some services allow highlighting of transcripts in real time.

Internet depositions are especially well suited for certain situations. "While we understand that there are many depositions that lawyers should attend in person, I-DEP [is particularly suited to] sit-in deps, multiple-party and peripheral-witness depositions, and most telephone depositions," said Jay Jackson, the president of I-DEP.

While Internet depositions let large firms involved in multiparty litigation send only one representative to the deposition, online sessions can also let small office practitioners be more productive by staying in the office. For example, an attorney could send an associate to conduct an online deposition, monitoring and coaching from the office.

Sending an associate to take a deposition online "allowed me to avoid losing a whole day due to travel but still be able to ask probing questions as new material was discovered during the dep," said Larry Bennett of Troy, Michigan. "It also kept the defense lawyers, who were more experienced than my associate, from taking undue advantage because they knew I was online and could intercede if necessary" via a call to the associate's cell phone.

At the most basic level, taking a remote deposition involves a simple telephone hookup, which doesn't allow remote attorneys to see the witness or send private messages.

Cathi Compton of Little Rock, Arkansas, conducts out-of-state depositions by phone because she doesn't want to travel all over the country when working on a contingent-fee basis (she says defense counsel don't mind traveling because they bill by the hour).

"When I don't need to eyeball the witness, I'll do it on the speakerphone," she said. But "I would definitely do it online, unless it was a witness I just needed to see/hear/feel in the flesh."

At the next level, some attorneys incorporate the Internet -- for example, taking depositions by phone, videotaping the witness, and having the court reporter provide real-time text over the Internet using LiveNote software.

Some services, like DepoStream from realLegal.com (www.DepoStream.com), broadcast a live, text-only deposition to an Internet site that also includes a secure chat feature. This allows multiple users to talk privately via an encrypted connection.

Allen Williams of Honolulu calls that "the poor man's remote real-time system." Before Internet-based server systems, he took real-time depositions using LiveNote and LapLink software for file transfers. "The court reporter hooked up to my computer via serial connection, then my computer was connected to a phone line with LapLink running. My expert dialed into my computer at the depo room, and he had a clear, direct connection to my computer. He saw on his screen what was appearing on my screen, which was the real-time transcript.

"The bottom third of both of our computers was reserved for the LapLink chat screen. So as he saw something he wanted to comment on, he would just type it to me. It would show up instantly on my computer screen. It wasn't intended to be instantaneous questions, since there's a little lag in the system, but it was notes to review later during a lull in the questioning or during the break."

Using this direct connection, Williams had to pay a long-distance phone charge, but he didn't have to pay for an application service provider.

One of the chief benefits of Internet depositions is cost savings. While the fees charged by service providers vary depending on the length of the deposition, the number of people monitoring it, and the court reporter, the total charge is generally $2 to S5 per minute -- roughly $500 to $1,200 for a four-hour deposition. No special technology or hardware is needed -- just a high-speed Internet connection. In most cases, everything is available at the service provider's site, and the lawyer pays only for what he or she uses (in addition to hiring a court reporter and a videographer).

Deposing witnesses online from the office also saves attorneys time and travel costs, which can be substantial, particularly if a client, experts, and other attorneys would attend the deposition. Online, any number of peripheral attendees can participate from anywhere after registering with the service provider and obtaining a password and ID number. With instant messaging, cocounsel don't have to request a break or pass notes to the questioning attorney. Instead, on-site and remote participants can collaborate in confidence. A client could even feed questions to his or her lawyer, or the deposing attorney could ask a colleague to do some quick research while the questioning continued.

The downside
But sometimes real time just isn't real enough. It can be hard to gauge a witness's demeanor and reactions by video.

"Some witnesses in distant locales will still need to be deposed face-to-face for various reasons," said Jacobson. "For example, if it is necessary to have a witness point out complicated information with exhibits (such as details of an electron microscope image), I don't believe this could be done remotely with current technology. Assessing the credibility and demeanor of a witness may also require in-person depositions. Also, if there is a concern that opposing counsel will coach or signal the witness during the deposition, I would be reluctant to take the deposition over the Internet."

Other drawbacks are technological. Instant messaging programs do not generally communicate with each other, so everyone participating in a deposition needs to be on the same service. Hackers could potentially intercept these communications and other data, although vendors are increasing security features so the products can be used for business, not just informal "chatting." For example, lexisONE just announced it will provide its members secure messaging services from CertifiedMail.com.

Procedural concerns
Local, state, and federal court rules may change when more attorneys begin taking depositions online. Currently, state courts have not devised rules governing online depositions, and most require that attorneys stipulate to having video depositions admitted. The federal rules do cover video.

Other questions have yet to be addressed:

  • Who should be entered into the record as making a formal appearance at an online deposition? Usually, if experts attend a deposition, it's noted in the transcript. With online depositions, an expert could participate electronically without telling the other side.
  • Will experts or witnesses be allowed to participate in a deposition via instant messages?
  • Which specific communications (chat, video, transcript) are protected or privileged?
  • If participants' comments by private message are collected as a transcript, are an expert's comments to an attorney discoverable if they affected the formation of his or her opinion?
  • Can witnesses listen to other witnesses' testimony without telling the other side?

When conducting online depositions, Drew Britcher of Glen Rock, New Jersey, said he is in the same room with the opposing attorney, while the witness is in the remote location.

"The witness is sworn in by the court reporter or court clerk at my end of the transmission," he said. "It is important to make sure that you have required your adversary to produce a copy at your end of everything the witness has at his or her end. I also ask witnesses to identify everything they have brought to the deposition with them and whether anyone other than the technician is present at their end."

Martin Blake of San Francisco has presented trial testimony over the Internet, but he takes depositions over the phone and videotapes the expert, which he said provides almost instantaneous communication if the participants have top-grade, compatible equipment.

"The Internet conference is a difficult thing," he said. "Up to this point, it has basically involved chat rooms. It requires high-end dollars to get more sophisticated technology, and it's not yet practical to do it when videoconferencing works well. I do see it happening, but have to see it first to believe it."

As attorneys recognize the utility of Internet deposition technology and courts make provisions for its use, the most sophisticated online depositions -- involving video, audio with a remote attorney asking questions, real-time transcripts, and instant messaging -- may become the most common.

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