Skype™ Depositions: Why Use a Lamborghini When a Hyundai Will Do Quite Well? Part I

            This blog and the blog to follow are meant to summarize the attitude of courts towards the use of Skype™ as an effective means of taking depositions.  It is also intended to provide a basic introduction to the use of Skype™ for this purpose, as well as how to address common technical and practical issues which might arise.  It is not intended to allow an individual with little or no knowledge of computers to take a Skype™ deposition unassisted, and even experienced users would be well advised to consider arranging for professional technical support to provide advice and assistance in setting up a Skype™ Deposition. 

1.  The Use of Skype™ for Depositions Has Been Permitted and Even Encouraged

            The D.C. Court of Appeals, on July 2010 issued a decision that contains a strong nudge from the Court to the practicing bar to begin to use Skype™ for depositions rather than video conferencing, which is extremely expensive.  In its opinion, the Court said the following:

“[A]ppellees did nothing to explain why it was necessary for them to use the Lamborghini videoconferencing method they chose to take the witness’s deposition when a Hyundai might have been just as effective.  At the time of the deposition, methods of conducting online videoconferencing without charge were available.  For example, we take judicial notice of Skype™, a popular service that allows people to make unlimited video calls over the Internet for free using just a web camera, many of which cost under $100, and a computer.” 

Mody v. Ctr. for Women’s Health, P.C., 998 A.2d 327 (D.C. 2010); See also Westmoreland v. CBS, Inc., 770 F.2d 1168 (D.C. Cir. 1985); Guillen v. Bank of Am., 2011 U.S. Dist. LEXIS 148405 at *3-*4, n.3 (N.D. Cal. Dec. 27, 2011); Degenhart v. Arthur State Bank, 411-cv-041, 2011 U.S. Dist. LEXIS 104839 (S.D. Ga. Sept 15, 2011); Balu v. Costa Crociere S.P.A., No. 11-cv-60031, 2011 U.S. Dist. LEXIS 85299 (S.D. Fla. Aug. 3, 2011); Garcia v. Resurgent Capital Servs., Inc., 11-cv-01253-EMC (N.D. Cal. 2011) (Doc. No. 57); Sloniger v. Deja, 09-cv-858s, 2010 U.S. Dist. LEXIS 134414 (W.D.N.Y. Dec. 20, 2010); Gaia v. Smith, No. 09-cv-212, 2010 U.S. Dist. LEXIS 28545 (S.D. Tex. Mar. 24, 2010); West v. City of New York, No. 88-cv-1801, 1990 U.S. Dist. LEXIS 6613 (S.D.N.Y. 1990).  

     2.   Traditional Videoconference Tips 

            Obviously some tips are universally applicable, whether you are videoconferencing using Skype™ or using more expensive videoconferencing equipment, the rental of which can often cost hundreds or thousands of dollars each day.

·         Clarity on Time – Any notice must be perfectly clear as to the time at which the conference will take place.  Preferably, you should specify the time in every time zone that participants are located in. 

·         Support Personnel

o   A notary will still be needed to swear in the witness;

o   it is preferable to have the court reporter present at the location where the witness will be located;

·         Exhibits – To the extent possible, try to provide the witness with copies of all exhibits you plan to use prior to the date of the deposition.  If you are defending a deposition, try to make sure your witness has access to copies of these documents. 

·         Conduct a Dry Run – Always test the video conference link out at least 24 hours prior to the event using all the same locations and equipment that will be used for the actual video conference.  This will provide sufficient time to address any unanticipated problems which may arise.

            Check back next week when we will share our Skype™-specific tips for videoconferencing.
    

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