“Stop and Think” About Skype for Depositions

Judge G.R. Smith issued a great reminder that lawyers must “stop and think” when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is “an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011).

Skype-IphoneThe case at issue requiring lawyers to “stop and think” involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia.

The Court, on its own, brought up the use of Skype to conduct the depositions. The Court explained that “Skype is now used to facilitate many a human interaction,” including parent-child visitation orders, marriages and depositions where travel cost is prohibitive. Hernandez, at *8-9, citing  Young v. Young, 2013 Ark. App. 707 (Ark App. 2013), Tshiani v. Tshiani, 208 Md. App. 43, 56 A.3d 311, 321-22 (Md. App. 2012) and  Yu Hui Chen v. Chen Li Zhi, 109 A.D.3d 815, 971 N.Y.S.2d 139, 140 (N.Y.A.D. Sept. 11, 2013).

The Court directed the parties to meet and confer over Skype-based depositions with translation and recordation, or the Plaintiffs contribute $1,000 to the Defendants for conducting the depositions in Mexico. Hernandez, at *9.

Bow Tie Thoughts

I am thrilled judges are ordering parties to look at using video depositions to reduce travel costs. However, I personally would not use Skype for a deposition. This is not because I do not use Skype, but would prefer a remote video deposition service instead. These services have applications designed specifically for remote depositions. They also understand the requirements for remote court reporters. Many states often require a court reporter to be with the witness for being properly sworn in. Moreover, an international setting likely would require the deponents to go to the US Embassy to be deposed.

I agree with Judge Smith’s logic, reading of the rules and solution. I would totally give him a high five for not being afraid to solve problems with technology. I just would use a different videoconference tool.

Skyping with The Confrontation Clause

We also understand that in this technological age, “confrontation” at some point may take on a meaning that none of us has yet imagined or realized. Despite advances in communication technology, a defendant’s right to a fair trial with all its attendant Constitutional guarantees is our legal and moral obligation to uphold.

Judge Michael P Barnes, Indiana Court of Appeals

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype.

Williams v State is one such unpublished opinion from the Indiana Court of Appeals.

The Defendant was convicted of murdering an elementary schoolteacher and sentenced to 95 years in prison. Williams v. State, 2012 Ind. App. Unpub. LEXIS 755 (Ind. Ct. App. 2012).

The Defendant appealed on multiple grounds, including whether the Skype deposition of a crime lab expert violated the Confrontation Clause and was hearsay. The crime lab witness case involvement included handling a doorknob, a key piece of evidence, with a bloodstain on it.

The State requested conducting the video deposition of the witness, because she was unavailable due to retiring and moving out-of-state to care for her “gravely ill and elderly” mother. Williams, at *5-6.

Over the Defendant’s objections, the Skype deposition was held approximately 2.5 months before trial. The witness was deposed with a Marion County deputy prosecutor, a Cuyahoga County, Ohio, deputy prosecutor, and the lead police detective physically present with her. The Judge presided over the deposition in court, with the Defendant, defense attorney, another deputy prosecutor, and IT personnel. Williams, at *6.

The Sixth Amendment requires that “out-of-court testimonial statements by a witness who does not appear at trial are inadmissible unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.” Williams, at *9, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004).

Indiana Evidence Rule 804(b)(1) states a deposition is admissible hearsay if the deponent is unavailable to testify as a witness at trial. Williams, at *9.

Evidence Rule 804(a) defines witness unavailability. A witness is unavailable if the witness:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.

The Court “believed” that the witness’ “unavailability” pushed the law to “the very edge of the envelope,” because it was not the witness’ physical or mental infirmity that prevented her from testifying at trial, but her mother’s illness. Williams, at *10-11.  Moreover, the determination the witness was unavailable was two and a half months before trial. Williams, at *11.  Additionally, there was no information if the health condition of the witness’ mother changed in that time. Williams, at *11-12.

Despite the unanswered questions, the Court found that even if the State failed to demonstrate the witness was unavailable, any error was harmless, because the Confrontation Clause “does not require reversal if it can be shown beyond a reasonable doubt that the error did not contribute to the verdict.” Williams, at *12, citing Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010).

The Court explained that the witness’ involvement in the handling the doorknob and bloodstain evidence was “slight” because she “handled the doorknob during the course of the testing process and was involved in the chain of custody of the blood stain swabbed from it, but no more.” Williams, at *13.

Bow Tie Thoughts

Judges and attorneys in their “normal” lives use technology such as Skype to communicate with family members, friends or hold meetings. This everyday use makes adopting remote video deposition technology easier, because attorneys are comfortable using video conferencing technology.

Such an embrace of Skype is a positive thing for cutting costs for travel to remote depositions of secondary witnesses. However, there are always legal issues to consider in using a technology in a way it might not be intended.

While this Court did not outright hold Skype was acceptable for a remote deposition, there are well-established remote deposition companies whose services provide security, reliability and a synced-video transcript. Using such companies could avoid potential notice and procedural requirements in a remote deposition, such as responsibilities of the videographer and oath requirements for swearing in a remote deponent. In short, using one of these companies is a good insurance policy to avoid any procedural challenges to a remote video deposition that otherwise could be overlooked.

Judge Barnes highlighted there could be real Constitutional issues in criminal cases with remote video testimony. I expect whether a remote video deposition being used at trial will be inversely proportional to how important the witness is to the case. If the witness is very important, their reasons for being unavailable must be very compelling for them not to testify in person.