Remote Depositions in Longshore, Defense Base Act, and Other Litigation Matters
Remote depositions are a necessity in claims filed by foreign nationals under the Defense Base Act. In other claims, remote depositions conducted through Microsoft Teams or Zoom can be efficient, cost-effective, and useful tools for discovery. If a remote deposition fails to create a clean and reliable record, businesses and their insurers risk weakened testimony, discovery disputes, and avoidable costs.
A successful and effective remote deposition requires preparation, along with additional attention to technology, witness management, exhibits, and the preservation of a clear record.
Our team’s global DBA experience has taught us the best practices for planning and taking remote depositions. Front‑load control, explain recording logistics, and set pacing for interpretation and breaks. Manage exhibits through a pre‑agreed protocol and test the platform before the deposition. This approach protects the evidentiary value of the examination and keeps the focus on developing facts, not fighting technology or off‑camera surprises.
Plan Early
- Select the appropriate platform. Confirm whether Teams or Zoom is permitted and whether the court reporter and other participants can reliably access the meeting.
- Test the technology. Conduct a brief test with the court reporter and videographer, as appropriate. Confirm audio, video, internet connectivity, screen sharing, recording arrangements, and access to exhibits.
- Megan Jackler: “Bring an easy to eat (no heating required) lunch assuming you limit everyone to just 10-minute breaks!”
Prepare for the Examination of the Witness
Remote deposition practice should never become a substitute for substantive preparation.
- Review the key documents. Organize pleadings, discovery responses, medical records, photographs, contracts, correspondence, prior statements, and other relevant materials. Identify inconsistencies and potential impeachment opportunities.
- Prepare an outline, not a script. Develop a logical sequence of topics and questions, while remaining flexible enough to follow unexpected testimony.
- Brent Powell: “Pull on threads and ask follow-up questions. Do not strictly stick to your outline or your pre-prepared questions. The more conversational you can be with a witness, the more open they will be to giving more information.”
Establish Ground Rules
Remote examinations require deliberate communication and careful pacing.
- Put the necessary ground rules on the record. Confirm the witness’s identity and location, the presence of anyone else in the room, the administration of the oath, and the recording arrangements. Establish that verbal answers are required and that participants should avoid speaking over one another.
- Abigail Hartzog: “Start with ground rules. Begin by briefly explaining the Zoom process and remind everyone to speak slowly, pause for interpretation, and avoid talking over one another.”
- Watch the witness carefully. Pay attention to changes in demeanor, hesitation, apparent confusion, and possible distractions. Remote video may limit the ability to assess nonverbal behavior, so clarify ambiguous responses through follow-up questions.
- Jackler: “Watch and listen to the witness closely if speaking through an interpreter – it becomes apparent quickly if there’s an issue with the interpretation that may prevent you from proceeding.”
- Address off-camera communications. Establish whether the witness has documents, a phone, notes, messaging applications, or other people nearby. If concerns arise about coaching or unauthorized communications, address them promptly and professionally on the record, consistent with applicable rules and agreements.
- Sarah Smith: “Work to maintain an effective record – if a witness is gesturing to an injury on their body, when sharing your screen, any notable movements that aren’t spoken words need to be read into the record to clearly show the movements and maintain the complete picture of what was happening.”
- Take breaks strategically. Build in reasonable breaks, particularly during lengthy examinations. State when the deposition is going off the record and when it resumes, and address any restrictions on communications during breaks as required by the applicable rules or agreements.
- Francis Waguespack: “Be sure to inform all participants of the length of any break and be sure to return in a timely manner.”
- Hartzog: “Be mindful of time zones and fatigue. A morning deposition could mean a late-night start for a foreign witness, so be aware of signs of fatigue or frustration and offer short breaks when needed.”
Manage Exhibits Before and During the Deposition
Exhibit handling is one of the most important practical considerations in a remote deposition.
- Pre-mark and organize exhibits. Where appropriate, coordinate with the court reporter and opposing counsel to number exhibits in advance and establish a consistent naming convention.
- Establish an exhibit protocol. Decide whether documents will be shared through a secure platform, displayed through screen sharing, or handled through another agreed process. Confirm that all participants can see the documents clearly.
- Use a controlled presentation method. Share one exhibit at a time, identify it on the record, and allow the witness sufficient time to review it before asking substantive questions.
- Heather Angelico: “Practice how to “share” your screen to show the witness documents. If you show a document to the witness, remember to introduce and mark as an exhibit.”
- Confirm what the witness can see. Do not assume that a document is visible simply because it appears on the examining attorney’s screen. Ask the witness to confirm receipt and visibility.
- Powell: “Use your breaks to review what was said and determine if there are any inconsistencies with what Claimant stated to their doctors or in discovery. This is where prep is most important. Follow up on those inconsistencies.”
- Clearly identify each exhibit and ensure the court reporter receives or retains it in accordance with the agreed procedures and applicable rules.
- For sensitive or confidential materials, confirm the applicable protective order, secure transmission method, and restrictions on access or distribution before the deposition begins.
Anticipate Technical Problems
A remote deposition is only as useful as the reliability of its record.
- Angelico: “Be at least 5 minutes early to the virtual link so you can troubleshoot any issues with the sound, picture, or camera.”
- Minimize distractions. Ask participants to mute when not speaking, disable unnecessary notifications, and use a quiet, private setting.
- Have a backup plan. Exchange reliable contact information in advance. If the connection fails, pause the examination, notify the participants, and resume only when the witness, counsel, and reporter can participate reliably.
- Waguespack: “Do not be afraid to ask opposing counsel to share screen so you can impeach their client!”
- Address interruptions expressly. If audio drops, a document is not visible, or an answer is interrupted, make the issue clear on the record and repeat the question or answer as necessary.
- Smith: “Make sure your camera lens is not covering your camera – this one is self-explanatory. Unfortunately.”
- Avoid unnecessary reliance on chat. Do not assume that chat messages, screen annotations, or platform recordings will become part of the official deposition record. Confirm the treatment of these materials in advance.
Maintain Professionalism, Security, and Confidentiality
Remote proceedings do not lessen counsel’s professional obligations.
- Use a private location and a secure internet connection.
- Avoid public Wi-Fi where practical, and use appropriate safeguards for confidential or privileged materials.
- Confirm who is attending and whether anyone is listening off camera or off microphone.
- Maintain professional attire, a neutral background, adequate lighting, and a camera position that allows the witness to be seen clearly.
- Address disputes calmly. If a technical or procedural issue cannot be resolved, state the concern on the record and preserve the issue without allowing the deposition to become unnecessarily contentious.
Key Considerations
A well-conducted remote deposition begins with a clear purpose, thorough substantive preparation, and coordination among counsel, the witness, and the court reporter. The most effective remote examinations are structured but flexible, technologically sound, professionally conducted, and focused on developing a reliable evidentiary record. Technology should facilitate the examination, not dictate it.
Remote depositions are only as strong as its record, so control it early, or invite disputes and diminished testimony. Experienced outside counsel treat remote depositions like live hearings and will be well versed in these best practices to best position DBA matters for favorable resolution.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
