The option to conduct depositions remotely is codified in the federal rules, but before last year, it was used sparingly. One pandemic later, litigators around the country now have over a year’s worth of experience taking depositions almost exclusively through Zoom or other remote platforms. Virtual depositions are destined to remain a fixture in the post-COVID era, but must also be balanced against the return of in-person depositions. Litigants’ growing reliance on remote capabilities therefore presents potential challenges for deposition practice going forward, and there are several ways that federal courts may seek to address them.
The challenge starts with the existing legal framework—in particular, Rule 30(b)(4) of the Federal Rules of Civil Procedure—which makes in-person depositions the default position and permits remote depositions only by stipulation or court order. If all parties agree to proceed virtually, then everything runs smoothly. But that will not always be the case. Some attorneys may hold out for in-person depositions as a matter of personal preference, or because a given witness’s testimony is deemed to be particularly important. Others may insist on virtual depositions, despite an opponent’s stated preference that they be conducted in person, because a witness seems better suited to testify at a distance. And in-person depositions may be requested for other strategic reasons, either to drive up fees in the hopes of forcing settlement, or as part of tit-for-tat gamesmanship after an adversary insisted on taking other depositions in person.