Some situations that would never arise in a “live” deposition can occur in the Zoom format, and if not anticipated, can lead to unfortunate results.
For example, texting. An individual – witness, lawyer, paralegal, observer – texting during a live deposition would be spotted immediately, and if the deposing witness, would be told by their attorney to cease at once. In the Zoom environment, however, it’s not always obvious that a witness is texting, because the witness’s computer camera might only capture their head and shoulders.
But since texting is no different than taking notes, said texts would have to be handed over to opposing counsel, and depending what the witness was typing, could be very bad news indeed.
Witnesses are often not aware that any communication during the actual deposition must be delivered to opposing counsel, just like any documents or paperwork brought in, and sometimes attorneys forget to mention it.
Prepare your witnesses for Zoom-specific sessions by telling them the best thing to do is leave their phone, turned off, in another room, and resist the 21st century urge to share everything with their nears and dears every second of every hour. Let them know how distracting, if not downright damaging, texts could be to their case. Even if the witness says “But I just want to check in with my spouse.” Sounds innocent, and maybe is, but who knows what opposing counsel might make of it?
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