In ediscovery, we spend a lot of our time discussing phases of the Electronic Discovery Reference Model, or EDRM. There are companies and solutions focused on the “left side” of the EDRM (identification, preservation, and collection), other companies and solutions focused on the “right side” of the EDRM (analysis, processing, review, and production), and still other companies and solutions offering end-to-end ediscovery. However, for many of those end-to-end providers, the right “end” stops at production.
Perhaps the phase that gets discussed the least by ediscovery professionals is the one that drives what happens in all others: the presentation phase.
Every other ediscovery phase, from identification through production, should be conducted with presentation in mind. To present evidence as exhibits in a deposition, trial, or other presentation event, that evidence must first be identified, preserved, collected, analyzed, processed, reviewed, and produced.
Depositions are a vital part of the discovery process. They are used to generate evidence for the ultimate presentation event – trial – but they are also presentation events themselves, in that evidence, whether physical evidence or electronically stored information (ESI), is often presented during the process of deposing the witness.
Depositions can be used to authenticate existing evidence, generate new evidence, or even identify discovery deficiencies, which may require additional discovery – or sanctions to be issued if spoliation of evidence has occurred.
Because of the deposition’s significance, it’s important to understand how to prepare for it, and that includes identifying your goals for the deposition, the questions you plan to ask, and the documents and exhibits you will present to the witness.
Developing your strategy in advance and building the story you want to tell gives you the best chance of accomplishing your goals for each deposition.
During the deposition, you execute that strategy to ensure you meet your goals of authenticating or generating evidence and identifying discovery deficiencies. The deposition testimony then becomes evidence that you organize for trial, presented in a manner that maximizes the value of that testimony.
Well-planned and well-executed depositions can literally make your case in court. Here are some best practices for preparing for them, conducting them, and organizing the evidence obtained from them for use in trial.
To prepare for and conduct productive depositions, it’s important to understand the basics. Here, we review what a deposition is, the common types of depositions, the rules governing how they are conducted, and the types of witnesses typically being deposed.
The concept of a deposition is relatively straight-forward. A deposition is the pre-trial taking of testimony from a witness, under oath and before a court reporter. By definition, depositions occur outside of the courtroom and before trial.
A deposition is part of permitted pre-trial discovery. It’s set up by an attorney for one of the parties to a lawsuit (defendant or plaintiff) and demands the sworn testimony of the opposing party , a witness to an event, or an expert intended to be called at trial by the opposition.
If the person requested to testify, also known as the deponent, is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side’s attorney. If the witness is an independent third party who’s reluctant to testify, a subpoena must be served.
The testimony is taken down by the court reporter, who will prepare a transcript if it’s requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach), refresh the memory of the witness, or be read into the record if the witness is not available.
There are two types of depositions that can be used in litigation, oral depositions and written depositions.
The most common type of deposition is the oral deposition, which is taken in person and recorded by a court reporter. This type of deposition allows for questioning of the witness by both the attorney taking the deposition and the attorney representing the other party. Today, oral depositions are often recorded on video, but not always.
Oral depositions have traditionally been conducted in person, though conducting depositions by telephone has been a typical alternative when the witness is located in a different state or country from where the case is being tried and it’s not practical to conduct the deposition in person.
However, in recent years, virtual depositions via a web conferencing platform like Zoom have become more popular – especially in 2020, when social distancing necessitated by the COVID-19 pandemic forced many to work and meet remotely. According to research conducted by PwC, remote depositions accounted for approximately 90% of all depositions during the height of the pandemic. That same report from PwC suggests that over 50% of depositions will occur remotely after all pandemic-related restrictions are lifted, and that number is expected to continue growing in the coming years.
Oral depositions may also be recorded, with the video recording used in the same manner as a deposition transcript.
Video depositions are becoming increasingly common, as they can capture more nuanced and consequential information, to bring to life the emotional elements of deposition testimony that may be lost in a text-only transcript.
Without video, the transcript serves as the only record of the oral testimony.
The other type of deposition is the written deposition, which is taken in writing and not recorded. Before a deposition of written questions is sent to the deponent, it must be sent to the other parties in the lawsuit. Any other party may object to a question or request that additional (cross) questions be asked, serving the purpose of cross-examination. A third party, such as a notary public or process server, presents the questions to the deponent. The questions are answered in the presence of the third party, who also attests that the answers are properly sworn.
As there are two types of depositions, there are also two rules in the Federal Rules of Civil Procedure, or FRCP, that govern how depositions are conducted.
FRCP Rule 30 covers the most common type of deposition – by oral examination. It addresses:
(a) when a deposition may be taken;
(b) notice of the deposition;
(c) examination and cross-examination, record of the examination, objections, and written questions;
(d) duration, sanction, and motion to terminate or limit;
(e) review by the witness and changes;
(f) certification and delivery, exhibits, copies of the transcript or recording, and filing; and
(g) failure to attend a deposition or serve a subpoena and expenses.
FRCP Rule 31 covers depositions by written questions. It addresses:
(a) when a deposition may be taken;
(b) delivery to the officer and the officer’s duties; and
(c) notice of completion or filing.
In both cases, the deponent’s attendance may be compelled by subpoena under FRCP Rule 45. (The United States Courts provides a template for a Rule 45 subpoena here.)
If the deponent wishes to avoid testifying, they can file a motion to quash the subpoena, which would then be heard by the court and either granted or denied.
There is also one rule for depositions in the Federal Rules of Criminal Procedure, or FRCMP.
FRCMP Rule 15 covers all types of depositions for criminal cases. Depositions in criminal cases are less common than in civil cases, but, under this rule, “[a] party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.”
State rules regarding depositions vary regarding specific requirements, so it’s best to consult the rules for your specific state.
There are three types of witnesses typically deposed: fact witnesses, expert witnesses, and character witnesses.
A fact witness is someone who has firsthand knowledge of the facts of the case. A fact witness can testify about what they saw, heard, or experienced. For example, a spectator of an automobile accident can be a fact witness testifying what they saw happened and, potentially, who may have caused the accident.
FRCP 30(b)(6) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.” So a 30(b)(6) witness is a fact witness – except that they are testifying regarding the corporate entity’s knowledge, not the individual deponent’s.
An expert witness is someone with specialized knowledge or skills who can offer opinion testimony. An expert witness can provide insights that go beyond the scope of a fact witness.
For example, a digital forensic examiner could provide testimony regarding whether an electronic file submitted for evidence is authentic or if it has been tampered with.
A character witness is someone who can attest to the character of a party to the litigation. In a criminal litigation, they typically provide testimony about the defendant.
The goals of a deposition depend on the type of deposition being conducted and the type of witness being deposed. Here are several best practices for preparing to conduct depositions and tips for preparing the documents and exhibits you plan to use.
A workflow for locating and preparing documents and exhibits can be broken down into three main components: 1) identifying documents to review, 2) culling a review set to identify potential exhibits, and 3) identifying the final set of exhibits.
You will want to perform searches within your document collection to identify documents that could be used as exhibits. Examples of search topics include:
The results of each search can be added to a review set to be considered for inclusion as exhibits during the deposition.
Identification is not limited to search, however. Specialized tools can help you make sense of large bodies of documents, without requiring you to know what issues or topics to search for at the onset. For example, consider integrating the following tools into your workflow for a better understanding of the potential evidence in your case early on:
Powerful but accessible ediscovery software, such as Everlaw, can be an essential tool not just in identifying key pieces of evidence, but organizing that evidence for presentation during depositions.
Once documents have been retrieved and placed into a review set, they can be reviewed and tagged as potential exhibits, based on the known topics and issues to be discussed during the deposition. Search and review are often iterative, in that review of documents may identify additional issues and topics that could be included in the deposition, leading to further searches and more documents to be reviewed.
Once the review process is complete, the final set of exhibits is determined and the exhibits can then be numbered for reference during the deposition.
Once you’ve prepared for the deposition, it’s time to conduct it, and you want to conduct it in a manner that best supports your goals for the deposition. Here, we discuss best practices for conducting a deposition, including pacing and strategy, as well as considerations for referencing evidence during a deposition.
There’s a saying that “you never get a second chance to make a first impression.” You also never (or at least rarely) get a second chance to accomplish your goals in a deposition. Here are 10 best practices for conducting a deposition.
Keeping these best practices in mind will help ensure a smooth process and a productive outcome for your deposition.
There are several reasons you may want to use an exhibit with a witness. They include:
In each case, you want to understand the goals for each exhibit and the expected outcomes for introducing it.
Once the deposition has been conducted, the post-deposition workflows of organizing testimony, handling deposition video recordings and written transcripts, organizing deposition evidence, and preparing that evidence for trial will enable you to maximize the use of your deposition evidence. Leveraging technology through tools such as Everlaw Storybuilder can help automate these post-deposition workflows.
In Everlaw, you can upload a transcript to a Deposition object you’ve already created. Once you’ve successfully uploaded your transcript, you can then begin to search for and highlight key testimony to help organize it. You can also search across the entirety of your transcript for key terms, moments, or responses, or search across specific sections of the transcript.
Crucial pieces of testimony can be added directly to your timeline. Information from your deposition can be supplemented with dates, descriptions, relevance, and labels, to help build the most comprehensive view of your case.
Because meaning often goes beyond the written word, videos of deposition testimony can provide a valuable advantage when building a case, allowing you to unearth subtleties that may otherwise be lost.
In Everlaw, you can upload a video deposition and its accompanying transcript for easy playback and review. Users can then add notes to timestamps and create compelling video clips to present at trial.
As depositions can sometimes stretch over several hours, if not days, being able to find the information you need in video recordings without having to review them in their entirety is key.
Tools such as Everlaw can instantly auto-sync deposition videos and accompanying transcripts. This enables attorneys to not only read the transcript onscreen while watching the deposition or trial-video footage, but to also search the video record for key words and phrases at any point, quickly finding important testimony and key excerpts. At trial, the litigation team can use the synchronized transcripts to quickly locate and play back passages of important testimony in court to respond in real time to court events.
With documents marked as exhibits in your depositions, labels added to key testimony, and video depositions synchronized, you can effectively manage the end-to-end process of deposition and trial preparation by integrating key portions of testimony into critical documents.
Crafting a strong narrative is a fundamental part of trial preparation. The client’s case boils down to the story the attorney tells, regardless of exhibits, expert testimony, or any of the other details that make up a case. If the story is feasible, believable, and memorable, it’s much more likely the judge and jury will look at it favorably. In contrast, if an attorney can’t present the case well, neither the judge nor the jury will likely give a lot of credence to the evidence presented. The ability to leverage technology to organize the evidence to create that strong narrative is your best advantage in trial preparation.
Presentation is the culmination of the ediscovery life cycle. It’s the phase that all other phases are built around.
Depositions are a key discovery tool for capturing evidence, while also being a presentation event as well.
How well your team prepares for, conducts, and uses the depositions in your case can significantly impact your case outcome.
A combination of following best practices, leveraging technology, and collaborating to organize the evidence obtained can enable you to get the most out of your depositions, and that strengthens your chances for a positive case outcome.
Casey Sullivan is an attorney and writer based out of San Francisco, where he leads Everlaw’s content team. His writing on ediscovery and litigation has been read by thousands and cited by federal courts.
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