As the practice of eDiscovery continues to advance, it is important that attorneys keep up with evolving trends says, William D King. The following are some general best practices to consider when preparing for and conducting legal depositions in the digital age. They are intended as a guide only; local rules or court orders may impose additional requirements or supersede any of the guidelines below.
Best Practices for Legal Depositions in the Digital Age
Attorneys who do not conduct legal depositions on a regular basis should educate themselves on best practices before taking on this responsibility. It is advisable to talk with colleagues who regularly take depositions and review deposition checklists that circulate online or within your professional association.
Preparing for the Deposition
- You should not assume that the opposing party and his or her attorney will do all of the necessary background work. It is your responsibility to find out what has been done to prepare for the deposition and whether there are any holes in your case. You must determine what additional investigation you need to conduct. Such as who has knowledge about certain issues, where documents might be. And how they can be obtain. The more you know going into a deposition, the better prepared you will be when it comes time to question witnesses.
- In addition to preparing yourself, you should also consider how much help you need from others within your firm in order to go forward effectively in someone else office. Will one or two people from your firm be present at the deposition? Will you be able to effectively communicate with those who are present if you need something done outside of the room, such as a document found or produced, or an email sent?
- You should think carefully about how much information is enough to put into a demand letter. If there is too little information, it may not elicit useful responses from witnesses and opposing counsel. On the other hand, presenting more than necessary can expose your case. To extensive requests for documents and/or depositions outside of the scope of what is require to prove your case. While most jurisdictions do require that some sort of initial disclosure must happen. Before discovery begins (e.g., the rules of federal procedure require that a pre-discovery conference take place before any discovery can occur; many states have similar requirements), the exact amount and type of information that must be given varies widely. It is important to review your local rules or consult with an experienced attorney. To determine the precise disclosure requirements before you engage in formal discovery activities such as depositions explains William D King.
- Oftentimes, it may not make sense to try to “game” eDiscovery software. When using Review software, it is common practice for litigators. To occasionally submit a sample set containing a small percentage of privileged documents. So that opposing counsel cannot ascertain whether there are privilege documents being withhold. Many attorneys believe that submitting a document inconsistently between a small test set. Known as the “sample,” and the larger production will result in privilege documents being withhold.
- When considering how much information to provide when engaging in eDiscovery. It is important to have an understanding of what opposing counsel may discover during discovery. If you are unaware, this lack of knowledge could hurt your case. When it comes time to present evidence during trial. For example, if there is only one computer hard drive in existence. That has not been search but it contains relevant files that support your case (e.g., emails). This would be consider spoliation evidence and your ability to prove your claims might be seriously undermine.
- When dealing with spoliation and preserving evidence, Rule 37 states: “the court for cause shown may order that [documents] be produced or that an action be taken with respect to them . . .” Rule 37’s purpose is “to make sure that a potentially responsible party will not suffer prejudice” because of mishandling of possible evidence says William D King. The rule intentionally does not define what constitutes sufficient “cause”. But it does provide examples, such as when there has been a substantial delay, bad faith, repeated failure. To comply with discovery orders, or other circumstances showing disrespect for the judicial process.
It is important to remember that an attorney’s professional responsibility does not end. When a deposition concludes says, William D King. Often, attorneys fail to consider how their behavior and demeanor during deposition might impact future proceedings. Before you exit the room at the conclusion of your deposition. Take a moment to think about what just took place. And whether you should change your tone or approach before returning for round two—if there will be one.