Written by Guest Blogger: Lawrence Silver
When the lawyer taking a deposition and the witness who is being deposed are not in the same room, there can be difficulties using documents during the examination. Ordinarily the deponent is subpoenaed to appear at a facility that offers teleconferencing. Assuming you wish to avoid the disclosure to the deponent and adversary counsel of documents you may or may not use in the deposition, you may want to send them (usually via Federal Express) to the operator of the facility. The envelope you send might contain a number of letter-sized sealed envelopes, each designated with a letter, say “A”, “B”, “C”, etc. During the course of the deposition, the taker of the deposition can ask if the deponent had received from the operator a Federal Express envelope and instruct the deponent, who is at a distance and while the broadcast is taking place, to open the Federal Express envelope. Then the deposing lawyer can ask, for example, that the envelope marked “A” be opened, at which point he would tender to opposing counsel a copy of the document in envelope “A” and tender a copy to the court reporter.
If your court reporter is at the distant location, you can transmit the documents to the court reporter, then at the appropriate time ask the court reporter to tender the documents to the witness.
Adverse counsel may require that the document that is marked or shown to the witness be verified to be the same document as the one he has received. No lawyer would likely provide a document which in any way differs, because the consequences of such a stunt would be enormously negative. Nonetheless, the adverse lawyer can require that the witness hold up the document that has been marked as Exhibit A and verify to the distant taker and adverse counsel the document’s content and what is being provided locally is the same as the document before the witness. The taker may want to have this assurance “on the record” as well.
If adverse counsel are in different locations, provide a Federal Express envelope to each location and request the administrator open the envelopes as they are called for. Or fax a copy of the document to be used from the taker’s facility to the facility used by adverse counsel in distant locations.
There are additional issues when the deponent at a distant location has been served with a subpoena duces tecum and is now bringing documents for the first time. This would preclude the taker’s review of the documents before examination. This problem can be solved by having a Custodian of Records deposition a day or so before the witness’s deposition. Often times, noticing the two depositions solves the problem. Usually a witness cooperates by providing the documents to the deposition taker in advance of the deposition, avoiding the necessity of two depositions.