Adjusting the Sails: The Pandemic Effect on Remote Depositions

• Date: 01 January 2021
• Author: Mark A. Drummond

By Hon. Mark A . Drummond (Ret.), Litigatio n News Associate Editor

“We cannot direc t the wind, but we can adjust the sails.”

—Attributed to many

Courts around t he country are tu rning to

remote trials at var ious speeds. Some have

pivoted very quickly and ot hers are taking it

slower. Because many tri als have been put on

hold, this is the idea l time for attorneys to do

depositions. Here are some suggest ions.

Set a Course: The Court

Check your court ’s website before you even send out a

notice for a deposition. Som e courts have issued protoc ols

that help attorneys navig ate the remote advocacy world.

For example, the Hon. Rober t W. Lehrburger, U.S . district

judge for the Southern Dis trict of New York, issued a sam-

Adjusting the Sails: The Pandemic

Effect on Remote Depositions

ple remote deposition protocol th at attorneys cou ld adopt or

modify as nee ded. This has be en posted on many websites

addressing these issue s.

What a gift to at torneys to have a federal judge suggest

this protocol: “T he Parties agree not to ch allenge the valid-

ity of any oath admi nistered by the cour t reporter, even if

the court repor ter is not a notary public i n the state where

the deponent resides.” This a lone will save attorneys time

and their clients fe es by eliminating the need to shop for a

different cour t reporting service in each st ate.

Judge Lehrburger’s sample proto col makes clear that it

is not mandatory but provides opt ions for such things as

exchanging ex hibits. With the land scape shift ing from day

to day, it is wise to check whether your cou rt has issued

protocols that could help you or are ma ndatory for you

to follow.

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Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

PRACTICE POINTS