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The Uncertainty of Remote Depositions Post COVID-19

Posted on: July 19th, 2021 by Sfl Media No Comments

As we have discussed many times here at CourtScribes, remote depositions became more prevalent in the midst of the COVID-19 pandemic. But we now have an interesting conundrum. Court reporters have refused to use video to record depositions because they were not certified to do so. This led to some attorneys taking the job upon themselves even though very few attorneys have had a chance to “test” the use of self-recorded video depositions at trial.

Now that civil cases are now getting back on the dockets, so are the questions of the admissibility of uncertified videos from remote depositions that took place during the pandemic.

In one Illinois case, a federal judge found that the use of such uncertified video recording bypasses the process outlined in the rules of civil procedure and jeopardizes the integrity of the proceedings. The judge was unconvinced by arguments that the certified transcript was available for comparison to affirm the accuracy of the video.

The judge seemed further concerned about the “vantage point” in remote depositions. He noted that in a gallery view situation, the jury could be influenced by the attorneys’ home spaces and children or pets that will occasionally (inevitably) appear on the camera.

He concluded that neither option mimics a typical video deposition that gives the jury proper focus at trial and that absent changes in the civil rules, uncertified recordings from video depositions are not admissible in his courtroom. It is difficult to tell how other courts will rule on the admissibility of such self-recorded online depositions.

As courts reopen, attempts to use uncertified video deposition recordings at trial will become more common. Until court rules and decisions provide more guidance, it is important to enter proper stipulations to ensure that an uncertified video recording of an online deposition can (or cannot) be used at trial.

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