Depositions give both parties in a civil or criminal case the chance to obtain evidence through witness testimonies and are vital to the discovery phase of legal proceedings. The most common form of deposition records are transcripts, which are typed, verbatim accounts of everything that was said. However, when your case needs to prioritize showing over telling, a video recording of your deposition is the go-to option. Capturing the expressions of a witness on camera can be a powerful legal tool. Depending on the situation, you may want to make witnesses appear more sympathetic, or less trusting, and that is something that words by themselves cannot always do.
While video depositions are a viable option for your case, conducting them is more complex than leaving the camera rolling and saving the footage for later. Before filming your deposition, you should first understand the technical aspects and methods of conduct the law requires. It is also helpful to understand the benefits of video depositions and how best to use them. We will cover both now.
Legal Requirements for a Video Deposition
Civil cases in the U.S. fall under the Federal Rules of Civil Procedure. Two rules specifically dictate video depositions and how they are carried out.
The first is Rule 30. Rule 30 deals broadly with depositions by oral examination. This includes how video depositions are conducted and scheduled. Rule 30 part A section 3 states:
“Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.”
These are the requirements dictating when a video deposition is allowed. However, other conditions must be followed during the deposition to ensure it can be used as an official record of the proceedings.
In Rule 30, Part 5, the officer’s duties are outlined. At the beginning of each recording segment, the officer in attendance, in most cases a court reporter, must:
Make an opening statement covering the information required in Rule 30, Part 5, Section A.
Complete the oath or affirmation to the deponent on camera.
Make a closing statement including all information covered in Rule 30, Part 5, Section C.
Additionally, it is mentioned throughout Rule 30 that the appearance or demeanor of the deponent or attorney may not be distorted through recording techniques. This means no filters or alterations of any kind to the original recording.
The second is Rule 32. This dictates the standards for when a video deposition is allowed to be used in court. The 1993 amendment to the FRCP states, “Under this rule a party may offer deposition testimony in any of the forms authorized under Rule 30(b) but, if offering it in a nonstenographic form, must provide the court with a transcript of the portions so offered. On request of any party in a jury trial, deposition testimony offered other than for impeachment purposes is to be presented in a nonstenographic form if available, unless the court directs otherwise.”
The last legal requirement to understand is that of your state. While most states, 35, have adopted the Federal Rules for Civil Procedure with menial alterations, there are 15 states that have additional guidelines. For example, California requires deposing attorneys to declare their intention to present the recording at trial in the original deposition notice. Each state may differ and require additional considerations when recording a video deposition.
Technical Requirements of a Video Deposition
To ensure that each video deposition is of the highest quality, there are certain guidelines deposition videographers should follow. While there are no legally binding guidelines, knowing best practices will be key to ensuring that video depositions are accurate and can be used as an official court record.
Here are some of the most important rules to keep in mind as a video deposition is recorded:
The recording should be done and delivered at 720p or 1080p.
The equipment used to record the deposition must be able to display the date and time throughout the entirety of the recording.
Ensure the camera is placed to see the full view of the deponent's face and hand during oath or affirmation, and that it shows any exhibitions present.
If the HD file must be cropped, no part of the deponent can be cropped out of frame. If there is a portion of the deponent cropped out, a letterboxed 16:9 aspect ratio is preferred.
Audio levels should be adjusted before the deposition begins.
The videographer shall create a log of events during the deposition. The log will be submitted with the original recording.
These guidelines can help create a high-quality video recording to be used as an official record in court.
Benefits of Video Depositions
With a better understanding of video depositions' legal and technical requirements, we can explore some of the many benefits.
More Information
As we discussed earlier, deposition transcripts feature only the words of the deponent. However, there are small human idiosyncrasies only visuals can articulate. While words are important, hearing how a witness gave a statement, and seeing their nonverbal cues, allows for a more thorough analysis of a testimony.
Another critical use of video depositions is impeaching witnesses who contradict their original testimony. Showing the jury exactly what a deponent said in a deposition, compared to what they are now saying in court, can discredit a dishonest witness and have any disparaging statements of theirs ignored.
Stand-In for Missing Witnesses
If a witness for your case is unavailable, you may be able to use their video deposition as admissible evidence in court. This is useful if a key witness is unable to testify due to circumstances such as imprisonment, illness, or refusal to appear in court. Losing a testimony due to witness misdeeds can cause serious harm to your case.
NAEGELI Deposition & Trial follows specific procedures, including proper starting and ending protocols, on-camera swearing-in of the deponent, and advance notice of videography. NAEGELI Deposition & Trial is a nationwide provider of comprehensive legal support services, connecting clients with court reporters, videographers, remote depositions, and more. Contact us for more information or assistance and experience the peace of mind that comes with having a trusted partner in your legal journey.