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David Parnall, a trust and estate litigator with Hartog, Baer & Hand David Parnall, a trust and estate litigator with Hartog, Baer & Hand

At a recent, pre-pandemic CLE on depositions, the presenters opined that if a deponent brought a phone to the depo, the deposing attorney could look through it. Their logic was that a phone inevitably contains information that would refresh the deponent’s recollection on relevant topics, like addresses. They reasoned that the deposing attorney could have the deponent look up that information, which would lead to unfettered access. Their position sounded hyperbolic and inaccurate. Given that any deponent’s pocket will probably hold vast swaths of digital information, device access is an important issue. With the new reality of remote depositions, that issue has become even more pressing.

Consider the following exchange after a deposing attorney establishes that the deponent does not remember an address:

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