Although not a new phenomenon, virtual depositions became indispensable to the COVID-19 pandemic litigator. Courts, attorneys and their clients were forced to learn how to navigate virtual platforms such as Zoom, Microsoft Teams and Skype, among others, to keep up with legal proceedings while prioritizing safety and health. Now, as we emerge, albeit haltingly, from the pandemic, those depositions are seeing the light of litigation … or at least they are trying to.

As a threshold matter, it is important to appreciate that videoconference depositions and video-recorded depositions are distinctly different devices used in the realm of virtual depositions. "The former uses remote technology to conduct a deposition; the latter records and preserves the deposition in video format that could one day serve as a substitute for live testimony." Alcorn v. City of Chi., 336 F.R.D. 440, 444. However, the record features of third-party platforms, such as Zoom, have blurred the line between the two. By enabling the record feature, a party is able to record the deposition through the virtual platform and save a copy of that recording, thereby, in a sense, turning a videoconference deposition into a video-recorded deposition.

Unfortunately, the record features of Zoom and the like do not come equipped with the chain of custody and integrity safeguards historically insisted upon by courts. The Federal Rules of Civil Procedure permit remote depositions by stipulation of the parties or court order. Fed. R. Civ. P. 30(b)(4). But when it comes to video-recorded depositions, the rules require deposition recordings to be certified by an officer of the court. Fed. R. Civ. P. 30 & Fed. R. Civ. P. 28. New York's C.P.L.R. 3113 aligns with the Fed. R. Civ. P. by allowing the parties to stipulate to officers of the court appearing remotely. What you will not find in any of these rules is explicit permission for a party to engage in a secondary recording or transcription of a deposition, such as is now commonly available through virtual meeting platforms.