If There is Anyone in This Room with Us, Make Yourself Known! The Obligation to Disclose the Presence of Individuals Attending a Deposition Virtually

A previous post addressed the situation where individuals other than the deponent, court reporter, and counsel attend a deposition at the invitation of one party and without notice to the other side. In short, while the best practice is to provide advance notice to opposing counsel, there are no clear prohibitions.

But that situation assumed that those invited to the deposition would be physically present, and thus their attendance known. With the increasing use of live-stream technology in depositions, as elsewhere, now anyone can virtually attend a deposition, and their presence may never be known to the deponent or counsel.

Most court reporters now offer streaming software that provides a rough transcript of the deposition in real time as it is being transcribed. If the deposition is being videotaped, a live video feed also may be available, allowing the deposition to be viewed in real time remotely. Moreover, with the use of text messaging or email, these remote viewers can provide immediate input to counsel attending the deposition. Conversely, the deponent’s counsel may arrange for an undisclosed live feed of the deposition (e.g., with a smartphone) without the knowledge of the party taking the deposition.

The question arises whether counsel must—or should—disclose the attendance of these unknown participants at some point before the deposition commences. The Federal Rules of Civil Procedure do not (yet) address this question. At least one court presented with the allegation that undisclosed live-streaming of a deposition had occurred concluded that there was “nothing untoward about arranging for” the defendant and his other attorneys to watch the deposition via closed circuit feed to a nearby conference room.[1]

On the other hand, Federal Rule of Civil Procedure 26(c)(1)(E) expressly provide parties the right to seek a protective order restricting those “who may be present while the discovery is conducted.” To exercise the right requires knowing who may be present, and permitting parties to conduct a deposition without disclosing the virtual attendance of other participants would eviscerate it. Thus, best practices would seem to dictate disclosing live-streaming participants before commencing the deposition.

But the answer is far from clear, and there is no reason to assume that everyone is operating under the same understanding. Counsel attending a deposition—whether taking or defending—would do well to ask at the outset that not only those in the room state their appearances for the record but that any virtual participants also be disclosed. They may be surprised.

–Sarah Gohmann Bigelow