Trial Magazine

When my firm began taking video depositions in 1980, we were in uncharted territory. We were not alone—other plaintiff attorneys were growing similarly convinced of video’s benefits. Unlike stenographic transcripts, video depositions allow jurors to observe an absent witness’s tone, demeanor, and body language. They bring to life deposition excerpts offered at trial for impeachment purposes. Outside the courtroom, video depositions can also point out testimonial weaknesses or strengths in an opponent’s critical witnesses, allowing you to assess trial strategies, settlement incentives, and avenues for further discovery.

But defense counsel were often suspicious of the process and routinely objected to everything: video notices, operators and equipment, review and duplication of recordings, or using the video at trial or to generate exploration in further discovery. They turned every notice of deposition into a battleground.

Fast-forward three decades. Today, video recording is routine, and not just because of updated court rules. Advances in technology have rendered stenographic recordings obsolete; increased the ­cost-effectiveness of using video; and transformed discovery, courtroom, and settlement practices. Even early technology adopters may find themselves scrambling to keep up.

Know the Rules and Objections

Common objections include lack of due notice of video recording or attempts to video record when the notice indicated a stenography recording.¹ Other objections involve the particulars of the video procedure—for example, the identity of the video operator (many jurisdictions now agree that attorneys or staff can operate the equipment²), use of videoconferencing to take depositions remotely, adequacy of review or certification of the video recording, or the disabilities or other special vulnerabilities of witnesses during or after a video deposition.³

Your jurisdiction should have rules of procedure governing video depositions and common issues. For example, in New York, court rules spell out the procedure for video recording—including proper notice, objections, and trial use.⁴ Under New York rules and those of many other states, objections should be raised by motion for a protective order.⁵ Under most court rules, the non-deposing party may designate or move to obtain a video deposition when only a stenographic recording has been noticed, or vice versa. In jurisdictions that distinguish discovery depositions from evidentiary or trial depositions, rules governing deposition notices and video protocol may differ.⁶

Preparing for the Deposition

Video depositions can help keep opposing counsel in check by capturing obstructive conduct or a harassing tone. On the flip side, video depositions of your client or witnesses can capture weaknesses in your own case, allowing your opponent to capitalize on nervous habits or inconsistencies in testimony. At the very least, practice asking questions and handling exhibits on camera; it will make you and your client more comfortable—and aware of any problematic mannerisms—when the cameras roll.

Witnesses. Make sure your witnesses know to dress in conservative business attire, to sit upright without swiveling or slouching, to avoid fidgeting, and to look at the questioner or camera—not at their attorney. Witnesses also should know how to handle exhibits by examining them thoroughly and setting them down before answering questions.

Attorneys. Whether defending or questioning, attorneys also benefit from some preparation tips—or at least from ­undergoing a self-assessment of their onscreen style and presentation. Rambo tactics caught on video can undercut even the most persuasive testimony.

Exhibits. Video is unforgiving of unnecessary time lapses, so avoid fumbling through exhibits while on camera by identifying, organizing, and tagging them ahead of time. Know where your camera will be focused, and practice displaying exhibits to the camera so viewers will see only the exhibit—and not your hands or watch—with enough time to understand its content. Alternatively, exhibits can be separately filmed with a second camera and juxtaposed with testimony for trial by using two monitors. Showing exhibits on video also will be important if you’re taking the deposition via videoconference because it allows remote witnesses or counsel to examine the relevant items or documents.

Taking the Deposition

When you are the deposing attorney, you will be responsible for both the setting and equipment. Hiring professionals can make the video and audio run more smoothly, especially if on-the-spot troubleshooting­ is necessary. But whether the setup is professional or not, both the deposing attorney and the defending attorney should examine or monitor the video setup and sound system for proper placement and presentation.

Setting and camera position. Whether you use your firm’s conference room, a professional videography firm’s conference site, or the deponent’s office, choose a neutral backdrop with even lighting that does not fluctuate with the time of day or cast long shadows over the deponent’s face. Camera choice and placement are equally important. One camera is generally enough to film the deponent; position it over the shoulder of the questioning attorney to show the deponent’s full face and upper torso. This angle also naturally directs the deponent’s response toward the camera and the questioning attorney.

Sound. Some attorneys opt to place a single camcorder with high-quality sound pickup on the conference table. For better audio, professional ­videographers suggest individual ­microphones for the deponent, the questioning attorney, and anyone else expected to speak. Just remember to turn them off during breaks.

Remote witnesses. For depositions involving remote testimony or ­real-time conferencing, most jurisdictions will require a court order authorizing the process for swearing in the witness, overseeing the deposition, handling objections, obtaining and preparing transcripts, and sharing and storing the video product. Videoconference depositions are becoming mainstream—they save travel time and decrease delays and scheduling difficulties.⁷

Interpreters. If interpreters are required, make sure they understand their job: to interpret verbatim the questions posed and answers given. Occasionally, a court reporting service will offer professional or state-certified courtroom interpreters. Some attorneys also use a “table” interpreter—especially at trial—to monitor accuracy and suggest alternate questions or phrasing to avoid misunderstandings.

Having interpreters present might call for two cameras—one for the deponent and one for the interpreter. An extra camera is particularly helpful if a witness uses sign language or enhanced communication, because it will preserve the deponent’s testimony intact should the interpreter’s accuracy or ­understanding be challenged.⁸

Syncing. Many videography or stenography firms offer real-time synchronizing services—aligning video with the stenographic transcript so copies of the video include the corresponding text precisely timed to video images. One benefit of syncing is you can easily search for specific clips to designate for trial, although ­software allows you to do this yourself later (p. 40). ­Real-time­ syncing also might be helpful during videoconferenced depositions, providing text to help engage remote counsel or consultants.

After the deposition, follow court rules about duplication, service, certification, or filing. Follow your in-house protocols for backup and storage using external hard drives, cloud-based storage, or the storage services of a court reporting company, all of which allow ready access and sufficient confidentiality or security. Courts disagree about whether video deposition testimony not yet used at trial is subject to public access. However, they generally agree that even in a matter of public interest, a protective order on a showing of good cause—such as substantial embarrassment or impaired judicial efficacy—can bar any release.⁹

Using the Video at Trial

Your jurisdiction may require notice of intent to use video at trial or a motion in limine within a designated window of time. For instance, California rules require written notice and designation of video clips in time to allow for both objections and a ruling on the matter, which may result in parts of the video deposition testimony being suppressed or edited.¹⁰

Alternatively, to avoid ­last-minute trial decisions and jury delay, parties could share and agree on designations, counter-designations, or a timetable for disclosure of designations. To facilitate ruling on objections, court rules or practice may require written transcripts of designated clips to be filed with the court.

Determine the equipment you’ll need and how it will be used at trial. This depends on whether the ­courtroom is already video-equipped (and in what format—big screen, TV monitors, or sound projection) or whether counsel needs to provide cables, screens, and sound equipment. Figure out how many screens to use and where to place them so the judge, jurors, and court reporters have a clear view. Make sure the testimony is audible but not blaring. Decide whether to run synchronized text with the video, which is helpful when the witness has a quiet voice or an accent.

You will need to decide how to display the deposition exhibits. Second screens, split screens, or jury notebooks have their benefits, but they can distract from the witness. I prefer using a second screen. Most important, stipulate to an equipment plan with opposing counsel, request time for a run-through in the courtroom with your equipment and operator, and test visibility and audibility from the jury box.

Throughout trial, make sure the jury remains engaged. Your opening statement should prime the jurors for video testimony by telling them what to look for, and your closing argument should summarize what you showed them. If you are showing a complete deposition or lengthy excerpt, tell the jurors how long the clip will run and ask the court to designate breaks—once an hour is reasonable. This helps keep the jurors’ interest.

As for courtroom atmosphere, keep the lights on and present shorter clips or live testimony after lunch to help stave off drowsiness. Whether the clip is short or long, always show the witness being placed under oath and—if it will help impeach the witness or demonstrate defense counsel’s misconduct—the reading into the record of the ground rules for depositions.

You should also be aware of ­courtroom rules. They may require that you play each party’s designated clips for a single witness in chronological order. Alternatively, some counsel use opposing party deposition excerpts (which are admissible in many jurisdictions—for any purpose¹¹) to elicit a response during their client’s testimony or to focus the jurors’ attention on inconsistencies.

After Trial

When the trial is over, what happens to the videos? As a matter of public record, courtroom testimony—and testimony submitted on dispositive motions—is not generally protected from public use absent a compelling reason for issuing a sealing order. Posting to the internet is not presumptively impermissible, although it will likely result in a sealing order, sanctions, or a request for an injunction.

Compelling interests against posting the video online include impairment of law enforcement or judicial functioning; infringement on the privacy rights of third parties; or evidence of improper usage, such as for financial gain. ­Nonetheless, the web is replete with deposition videos—which serves as a caution to evasive witnesses and vividly illustrates the power of video to transform litigation strategy in and outside the courtroom.¹²

As judges’ chambers and courtrooms move into the digital age, lawyers should be ahead of the curve, harnessing the power of video technology to enhance discovery and persuade jurors.¹³

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William S. Friedlander is a partner at Friedlander & Friedlander in Ithaca, N.Y. He can be reached at wsf@friedlanderlaw.com.

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Notes

1. See, e.g., Miller v. Saha, 2016 WL 616851 (table) (N.Y. Sup. Ct. Feb. 11, 2016).
2. See, e.g., Ott v. Stipe Law Firm, 169 F.R.D. 380, 381–82 (E.D. Okla. 1996) (attorney can operate video camera); Rice’s Toyota World, Inc. v. Se. Toyota Distrib., Inc., 114 F.R.D. 647, 651 (M.D.N.C. 1987) (same); see also N.Y. Comp. Codes R. & Regs. tit. 22, §202.15 (West 2017); Cal. Civ. Proc. Code §2025.340(b) (West current with urgency legislation through Ch. 9 of 2017 Reg. Sess.); 231 Pa. Code §4017.1(b)(5) (West 2017) (allowing attorney’s staff to operate recorder). But see Schoolcraft v. City of New York, 296 F.R.D. 231, 239–40 (S.D.N.Y. 2013) (attorney cannot use personal video camera to record deposition when proper notice was not given and complex confidentiality issues make personal filming unreliable).
3. See, e.g., Chen v. Zhi, 81 A.D.3d 818 (N.Y. App. Div. 2011) (protective order directs deposition by “remote electronic means” in China on a showing of hardship to travel to the United States); Cox v. Jeffers, 222 A.D.2d 395 (N.Y. App. Div. 1995) (failure to certify audio recording bars use); Cascardo v. Cascardo, 136 A.D.3d 729 (N.Y. App. Div. 2016) (plaintiff with brain injury still subject to video deposition but with the right to have real-time reporting to help with processing during questioning).
4. See N.Y. Comp. Codes R. & Regs. tit. 22, §202.15 (setting out procedure for video recording, calling for due notice specifying that video will be taken and by whom; delineating who can operate video equipment; spelling out means of identification, timing, review, and certification of video recordings, among others); see also Fed. R. Civ. P. 30. For a sampling of other state and federal court rules, see Seth Laver & Jessica Wuebker, Ethical Implications of Posting Video Depositions Online, PLUS Journal (Jan. 2016), www.goldbergsegalla.com/sites/default/files/uploads/SLL-JLW-PLUSJournal-Jan2016.pdf.
5. See Jones v. Maples, 257 A.D.2d 53 (N.Y. App. Div. 1999) (protective order issued against video deposition on showing of potential for abuse); State ex rel. Anderson v. Miller, 882 P.2d 1109, 1111 (Or. 1994) (party may seek protective order to prohibit or limit videotaping, but it must show a need for protection from “annoyance, embarrassment, oppression, or undue burden or expense”); Fanelli v. Centenary Coll., 211 F.R.D. 268 (D.N.J. 2002) (denying protective order against video deposition in absence of showing of good cause).
6. See Fed. R. Civ. P. 30(b)(3)(b) (any party may arrange for alternate recording); N.Y. Comp. Codes R. & Regs. tit. 22, §202.15 (party may arrange for stenographic transcript of video deposition at own cost); see also La Marche v. Hackensack Univ. Med. Ctr., 2008 WL 4124473 (N.J. Super. Ct. Law. Div. Jul. 22, 2008) (non-initiating party may move to have video deposition). As for rules governing notice and video conduct of evidence depositions, see, e.g., Cal. Civ. Proc. Code §§2025.220(a)(6), 2025.340(c) (West current with urgency legislation through Ch. 9 of 2017 Reg. Sess.).
7. See, e.g., Koch v. Sheresky, Aronson & Mayefsky, LLP, 2010 WL 2066652 (N.Y. Sup. Ct. May 13, 2010) (“Courts have often directed the deposition of a party by video-conference, where the party had difficulty obtaining, or had been denied, a visa, or because of stringent U.S. travel restrictions with respect to the country of residence of the party to be deposed.”).
8. See suggestions in Nat’l Clearinghouse of Rehab. Training Course Materials, Univ. of N. Colo. (Sept. 31, 2013), www.unco.edu/marie/pdfs/Archived%20Webinars/Interpreting%20Depositions/Interpreting%20Depositions%20Caption.pdf; see also Taylor v. State of Maryland, 226 Md. App. 317 (Md. Ct. Spec. App. 2016) (error in criminal trial to admit audio of interpreter’s voice rendition of signing defendant’s sworn statement to police without allowing defendant to cross-examine interpreter about accuracy of translation); Cheng v. SEPTA, 981 A.2d 371, 380–81 (Pa. Commw. Ct. 2009) (excluding from trial video testimony of plaintiff with cerebral palsy on grounds that family interpreters were patently unreliable); Cascardo, 136 A.D.3d 729 (deposition of witness with brain injury to proceed with real-time reporting so the witness could see questions in written form before answering).
9. As to the right of access, see San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established­ that the fruits of pretrial discovery are, in the absence of a court order to the contrary, presumptively public. [Fed. R. Civ. P.] 26(c) authorizes a district court to override this presumption where ‘good cause’ is shown.” (internal citations omitted)). But see United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (“Documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the presumption’s reach (internal citations omitted).”); cf. Dougherty v. Heller, 2012 WL 3597506 (Pa. Ct. Com. Pl. June 21, 2012) (denying protective order where only the possibility of pretrial release is asserted); Forrest v. Citi Residential Lending, Inc., 73 So. 3d 269, 275–79 (Fla. Dist. Ct. App. 2011) (drawing a distinction between pretrial discovery and depositions placed on file with the court). As for factors bearing on a grant or denial of protection, see, e.g., Dougherty v. Heller, 138 A.3d 611, 631 (Pa. 2016) (protective relief against dissemination of video deposition denied when public figure plaintiff raises only vague “privacy” concerns); DaCosta v. City of Danbury, 298 F.R.D. 37, 40–41 (D. Conn. 2014) (party who is a public figure must make showing of substantial embarrassment or danger of misuse to warrant protection from dissemination of video deposition, while third-party witnesses’ privacy concerns justify protective order against release of their depositions); Stern v. Cosby, 529 F. Supp. 2d 417, 422–23 (S.D.N.Y. 2007) (protective relief against dissemination of libel defendant’s video deposition granted in high-profile case to prevent media “frenzy” and consequent impairment of judicial process).
10. Ca. Civ. Proc. Code §§2025.340(m), 2025.620; Cal. Rules of Court Rule 2.1040 (West current with amendments through May 15, 2017).
11. See, e.g., Fed. R. Civ. P. 32; Cal. Civ. Proc. Code §2025.620(b); N.Y. C.P.L.R. §3117(a)(2) (McKinney 2017).
12. See Laver & Wuebker, supra note 4 (reporting on a quick search that revealed 110,000 deposition videos posted online).
13. See James Bunting et al., A Paperless Courtroom: Embracing the Use of Electronic Trials, The Advocates’ Journal (Fall 2016), www.dwpv.com/~/media/Files/PDF_EN/2016/2016-09-23-A-Paperless-Courtroom-Embracing-the-Use-of-Electronic-Trials.ashx.