Authored by: Janelle Cerretani
Covid brought more than just remote work. Forced to mask up and social distance, depositions became almost impossible. That is, until the Supreme Judicial Court ordered that depositions may be conducted remotely. This order was later rescinded after Mass. R. Civ. P. 30, the rule governing depositions in Massachusetts, was amended to allow remote depositions as of right.
Although Covid seems to be a thing of the past, one thing that is here to stay – remote depositions. Although in person depositions have their advantages, remote depositions offer convenience and tremendous cost savings to practitioners, witnesses, and stenographers. But is the cost savings really worth it?
With the advent of remote depositions via platforms like Zoom, many attorneys are beginning to take advantage of Zoom features to aid in the prosecution/defense of their case. This includes Zoom’s record feature, which allows users to video record the deposition for free. That’s right, free. No need to hire a costly professional videographer; now anyone can record a deposition with the click of a button.
Seems innocent enough, right? With the click of a button, the parties can record a deposition and receive the footage instantly, bypassing a professional videographer entirely. And the best part? It doesn’t cost a dime.
Not so fast. Although Mass. R. Civ. P. 30 allows depositions to be recorded by audiovisual means, using free recording software, like Zoom, can be a recipe for disaster, and practitioners on both sides of the aisle should proceed with extreme caution.
Usually, when attorneys use platforms like Zoom to record a deposition, they typically elect themselves to record the deposition too, making the entire video recording process free. But is this allowed? Under Mass. R. Civ. P. 30, counsel may choose to video record a deposition as of right. The only requirement is that the notice must indicate the method for recording and if the operator is an employee of the noticing attorney. Many practitioners have interpreted this provision to allow the noticing attorney to simultaneously act as the operator. Although the SJC has yet to issue guidance on this issue, a complete review of Mass. R. Civ. P. 30 and its federal counterpart would suggest that the noticing attorney may not simultaneously act as the operator.
Rule 30(b)(5) states that a deposition “recorded by audiovisual means…shall be performed by an operator acting in the presence and under the direction of the officer.” The attorney taking the deposition is arguably not an “operator…acting…under the direction” of an officer. Thus, the only way to comply with Rule 30(b)(5) is to use a third-party operator to record the deposition. Further, Fed. R. Civ. P. 30, which Mass. R. Civ. P. 30 was modeled after, requires that all depositions be recorded by an officer as defined under Fed. R. Civ. P. 28. Not surprisingly, Fed. R. Civ. P. 28 expressly disqualifies attorneys as officers.
Why should you care if the attorney taking the deposition also records it? It creates a host of issues, some of which could jeopardize the prosecution or defense of the case. First, allowing the noticing attorney to simultaneously act as the operator creates logistical issues. For example, Rule 30(b)(7)(B) requires a digital clock on camera showing the hour, minute and second of the recording at all times, as well as the date. Rule 30(b)(7)(C) further states that no party is entitled to cause the officer to interrupt or halt the recording of the audiovisual deposition without the assent of all other parties present. Finally Rule 30(b)(7)(D) requires that “the officer shall assure that the audiovisual recording records the witness in a standard fashion at all times during the deposition.” As an exception, the officer “shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit or visual aid to be taken while the witness is being questioned.” These rules are important to preserve the integrity of the recording and in the event the recording were ever offered into evidence at trial under Rule 30(j). See Alcorn v. City of Chicago, 336 F.R.D. 440, 443 (N.D. Ill. 2020) (“What about the other logistics of a Zoom recorded deposition in the absence of a court videographer? Plaintiff seems perfectly fine with “Speaker view” or “Gallery view” on Zoom. With those vantage points, if the video deposition was ever played to a jury, the jury would be given an inside look into all the attorneys’ home spaces, their tastes in books, photos of their families, their likely outdated CD collections, and the occasional child or pet that inevitably makes its way into the camera during a seven-hour deposition. None of this is necessary and is frankly distracting.”).
The noticing attorney cannot possibly manage the audiovisual recording equipment to ensure compliance with the aforementioned Mass. R. Civ. P. 30 requirements while also taking the deposition. The attorney taking the deposition is focused on the questions being asked and the testimony of the witness and is not monitoring the accuracy of the video recording. It is for this exact reason that the Massachusetts Court Reporter’s Association sternly advised against a stenographer serving in the dual role of videographer. See Mass. Ct. Reps. Ass’n Advisory Op. (Nov. 9, 2020).
Second, with the noticing attorney controlling the video recording equipment, it is impossible to know for certain whether the requirements of Mass. R. Civ. P. 30 are even being followed until after the deposition concludes, at which point it would become impossible to cure any deficiencies. More importantly, with counsel in control of the video recording equipment, the officer, would not be able to assure that the recording is not interrupted or halted by counsel or assure that the witness is recorded in a standard fashion at all times during the deposition as required under Mass. R. Civ. P. 30(b)(7)(C) and 30(b)(7)(D). In contrast, these requirements can be met with a third-party operator “acting in the presence and under the direction of the officer,” as required under Mass. R. Civ. P 30(b)(5).
Finally, with counsel acting as the operator, there is no assurance that the audio recording will not be tampered with or modified. Mass. R. Civ. P. 30(f) requires the officer to take possession of any recordings of the deposition, and produce them upon request by the parties, the reason for which is to preserve the integrity of the recording. Alcorn, 336 F.R.D. at 442 (concluding that a court reporter retains a copy of the recording of a deposition “to ensure that a neutral individual administers the oath and that the deposition is an accurate reflection of the witnesses’ testimony” and removes any doubt as to whether recording has been tampered with or edited by either party). However, with only counsel in control of the audio recording equipment, who also has a financial interest in the outcome of the lawsuit, there is no assurance that the video recording will not be tampered with or modified in some fashion prior to handing it over to the officer.
Most screen-recording software, like Zoom, produces video recordings in formats that are editable by persons with little technical knowledge. In fact, the Zoom website advertises just how easy it is to edit a recording, stating:
Zoom recording formats — MP4 and M4A — are easy to edit in virtually any editing software, like ScreenFlow, Camtasia, iMovie, or any of the video solutions in Adobe Creative Cloud. Go to your account settings to choose an option to optimize your recording for a 3rd-party video editor for the best results.
Should there ever be any dispute concerning the authenticity of the recording, the attorney acting as the operator will effectively become a witness for purposes of establishing the chain of custody prior to delivering the recording to the officer, which would be problematic for obvious reasons. More importantly, however, the Massachusetts Rules of Civil Procedure do not put the onus on the parties, as interested participants, to ensure the integrity of a deposition proceeding. Mass. Civ. P. R 28(c) expressly disqualifies an attorney for the parties to qualify as an officer, and it is the officer that is expressly charged with affirming the accuracy of deposition testimony pursuant to Mass. R. Civ. P. 30.
Think these what if scenarios will never happen? Think again. The concerns raised in this article came to fruition during a deposition I defended several years ago. The noticing attorney attempted to serve as the operator, which I only discovered after inquiring as to who would be recording the deposition. I objected and filed a motion, which was partially allowed. Although I argued that the deposition should not be recorded via Zoom’s free record function for the reasons cited herein, the Court allowed the deposition to go forward via this method. However, the Court did deny counsel’s request to record the deposition himself, and ordered that a third-party must act as the operator.
Instead of spending the money on a professional videographer, the attorney asked the stenographer to record the deposition, something the Massachusetts Court Reporter’s Association sternly advises against. The stenographer, who had no experience video recording depositions, agreed and the deposition went forward. However, when I received the deposition footage my jaw hit the floor. Mass. R. Civ. P. 30 expressly states that only the witness shall be recorded and I was under the assumption that only the witness was being recorded during the 5 hour deposition. To my shock, I was also unknowingly recorded during the entirety of the deposition. Every yawn – recorded. My unkempt office in the background – recorded. Every time I checked the time on my cell phone – recorded.
Even after going through the efforts to obtain a court order to prevent this exact situation, it still happened. The noticing attorney even characterized my motion for a protective order as “overreacting.” Although the noticing attorney agreed to edit the video and crop me out of the screen in the event it was played to a jury, this presented a whole host of other issues, like the fact that it would distort the quality of the video and the date and time stamp would no longer be visible. Luckily, the case settled and we never had to deal with the issue.
The lesson here is to be super vigilant when deposition notices indicate that the remote deposition will be video recorded. This sometimes means that the noticing attorney plans to record the deposition via free screen recording software, like Zoom. Practitioners should be even more vigilant when the notice indicates that the deposition will be recorded by an employee of the noticing attorney’s law firm. This is almost always code for “the attorney taking the deposition is also going to record it.” If you see this language, contact the other side and inquire as to the methods of the recording and the identity of the operator. If necessary, file a motion. Although free remote recording software offers convenience and cost savings, I can say from experience that it is certainly not worth it if something goes wrong.
