Civil Litigation Pushes Forward During Extended Lockdown: Zoom Videoconference Advantages and Concerns
American society is on hold. Indefinitely. Three weeks ago, what seemed like a short-term inconvenience is now a long-term reality as much of the country is on lockdown for another 30 days at least. However, fortunately for all of us who work in the legal industry, our main commodities are ideas, communication, and information, which can easily be shared using technology and creativity while still practicing necessary social distancing.
Litigation support firms across the country have been screaming from the rooftops about remote deposition capabilities for over a month, but it seems the message is not being heard by many. But as the timeline for this lockdown continues to extend into the foreseeable future, it is time for discovery in civil litigation to push forward.
If you are a litigator with clients who desperately want to get their civil cases moving again, here is some critical information you may need regarding remote Zoom depositions before you start sending out those notices again.
REMOTE OATH ADMINISTRATION
Last month, we at Cleveland Reporting Partners published an article as a call to action for states to loosen their notary laws to allow for the swearing of witnesses remotely through video or teleconference. The National Court Reporters Association, many state reporting associations, and litigation support firms have all worked directly with Secretaries of State to get these restrictions temporarily lifted with varying degrees of success.
Before you send out your notices for remote depositions, check your state notary laws for any emergency action that has been taken. The National Court Reporters Association has published a state by state listing of notary laws regarding oath administration.
OHIO NOTARY LAW
While many states have very clear language regarding remote oath administration, Ohio is not one of them. The Ohio Court Reporters Association has issued an opinion/legal guidance through their legal counsel that oaths can be administered remotely in the State of Ohio, but parties should stipulate on the record that there are no objections to this before the deposition begins. Again, this is the OCRA’s counsel’s opinion and interpretation, and it is up to parties in any case to either agree or disagree with this interpretation for the remote deposition to move forward without objection.
NOTICING A REMOTE DEPOSITION
After you have checked your state notary laws and have decided to notice a remote deposition in your case, it is a good idea to change the language to reflect the platform on which the videoconferencing will occur. Check with your preferred litigation support provider. Most use Zoom, but there are other platforms out there in use.
We at CRP recommend that you do not include any meeting URLs or Meeting IDs on any notice of deposition. Instead, ask that your litigation support provider send this sensitive information through one-to-one emails to all intended participants.
THE ZOOM ADVANTAGES
As stated earlier, there are many intuitive web-based videoconferencing tools out there, but the most common by far is Zoom. Most litigation support firms around the world have been hosting remote depositions using Zoom for years, long before “social distancing” and “flatten the curve” became phrases of our everyday lexicon. However, as the use of Zoom has erupted over the last month, some of its security issues have been brought to light. But by working with an informed host, most or all of these security issues can be easily mitigated.
THE PLATFORM AND INTERFACE
One of the main reasons Zoom is so popular is because it is so simple. The interface is intuitive and functions are virtually all self-explanatory on the screen itself. All a participant needs is a device with a screen and a webcam, and you’re ready to join a deposition from your home.
THE MEETING LINK
Before the start of a deposition, your litigation support firm host will send out one-to-one emails to all participants who will be attending the deposition. This will include a meeting link, a meeting ID, and a meeting password. Some of the recent issues with Zoom have been due to hosts sending out meeting invites without a password. Be sure to work with hosts who always require a password for any Zoom proceeding. CRP recommends you never click a link to join a Zoom meeting that is not password protected.
Once you click the link provided to you by the host, you will be prompted to download the Zoom app. This takes little time and will automatically run once installed. If you have used Zoom in the past and have not updated your app, please be sure to install the latest version that has taken care of many of the security issues that have recently come up.
CONNECTION AND AUDIO
CRP recommends you use an ethernet connection for the videoconference, but it is not necessary. If you are using wifi, be sure you have enough bandwidth to support live video streaming. It may be a good idea to have others in your household refrain from large amounts of streaming while you are in the deposition.
We also recommend you use a phone for the audio rather than your device speakers. The meeting invitation will give you a dial-in number to use to connect to the audio portion of the meeting. It is also a good idea to use a Bluetooth conference phone. This is highly recommended to the court reporter so he or she can obtain the highest quality audio possible for obvious reasons. CRP recommends the Jabra Speak 510 Wireless Bluetooth Speaker to pair with your cellphone.
When scheduling a remote deposition with a litigation support firm, be sure there will be a monitor other than the court reporter that will handle all technical issues or questions that may arise. The court reporter has enough responsibilities during a remote deposition. Worrying about the tech should not be one of them.
You can live chat through IM to the monitor if you are having audio issues, or you can simply speak up and ask the moderator for help if your audio is still connected. The moderator will quickly resolve any issues, and the deposition can proceed.
Breakout rooms for parties are very important in a traditional deposition setting, and Zoom offers this ability by splitting up parties into private “rooms” during breaks. The moderator can create these rooms beforehand and then split parties up for breaks if they want to continue to conference privately. When all parties are ready to proceed with the deposition, the moderator will bring everybody back to the main meeting.
Most depositions will have some exhibits involved. Now, sometimes the information contained on such documents is highly confidential or even protected PPI. Therefore, CRP does not recommend file sharing on the Zoom platform itself. One of the security issues that have come up with Zoom is its lack of end-to-end encryption. Sensitive files should not be shared on this platform.
Instead, be sure to work with litigation support that will provide all parties access to deposition documents through the use of a password protected, encrypted portal. It is a good idea to provide all exhibits to the litigation support firm you are working with ahead of time, and then the moderator will facilitate access to each document as they are introduced.
Traditional depositions are oftentimes recorded by a trained videographer. This obviously cannot be done with a virtual deposition, but Zoom does give the host the option of recording the proceedings if requested by the parties, and that video could then be synced to the transcript. However, we highly recommend that all parties agree to the recording of the proceedings before the moderator does so. If you do decide to record the proceeding, all participants will see an icon on their screens that the proceeding is, in fact, being recorded.
While the majority of Zoom depositions run extremely smoothly, there have been reports recently of Zoom being overwhelmed with increased usage and questions about its security. More and more reports of “Zoom bombing” have been surfacing, where a malicious entity will gain entry into your meeting. However, simply by adding a password for all attendees to join your meeting significantly decreases the possibility of this ever happening.
As stated before, Zoom is not end-to-end encrypted (although the company does state that it is). Therefore, you should not be sharing any files over this platform. When working with deposition exhibits, it is mandatory for the protection of sensitive case material that you provide exhibits beforehand to your litigation support host so that the moderator may distribute them securely to all participants on an encrypted platform.
Although there are these two main security issues known on the Zoom platform, mitigating them is easy with a knowledgeable moderator who knows how to set up a secure environment and pay attention during the entirety of the deposition.
GETTING CIVIL LITIGATION BACK ON TRACK
I think it is so important for any industry to keep working by taking advantage of technology that can allow a sense of normalcy while still practicing social distancing. Civil litigation is an industry that can keep moving forward if we are all willing to do things a little differently and not be afraid to work outside the norms we have lived in for so long.
If you have never conducted a remote deposition, maybe start with a non-critical witness to test the waters. I certainly wouldn’t recommend jumping right in with a seven-hour 30(b)(6), but you can start somewhere. Ask your colleagues if they have any experience with videoconferencing to gain some further insight about what to expect and any issues you may encounter. It is a new and uncertain world, and we can all make it a little more normal by using our collective creativity and having a willingness to try new things.
If you would like a demonstration of a Zoom videoconference, contact Cleveland Reporting Partners at 216-459-7880, or email us at firstname.lastname@example.org. We would be happy to answer any and all questions through a Zoom meeting with you and your team and hopefully give you the confidence to start taking remote depositions!
About the Author:
Todd L. Persson has been serving the Cleveland legal community as a court reporter since 2002 and is a Co-Founder of Cleveland-based litigation support firm Cleveland Reporting Partners, LLC. He has spoken on the future of court reporting and technology on the Stenographers World Radio national podcast, has had blogs featured nationally by the National Court Reporters Association and the American Translators Association, and has had articles published in the Cleveland Metropolitan Bar Journal. To read Todd’s full bio, visit our Partners page. Connect with him on LinkedIn here.
CRP Blog Editors in Chief:
Grace Hilpert-Roach has been serving the Cleveland legal community as a court reporter since 1992 and is a Co-Founder of Cleveland Reporting Partners, LLC. To read Grace’s full bio, visit our Partners Page. Connect with her on LinkedIn here.
Christine Zarife Green has been serving the Cleveland legal community as a court reporter since 2008 and is a Co-Founder of Cleveland Reporting Partners, LLC. To read Christine’s full bio, visit our Partners Page. Connect with her on LinkedIn here.