By: Taylor Bartlett
Everybody has been the associate who was asked to lug an extra suitcase full of exhibits to an out of town deposition. Taking a paper deposition means that there must be two clean copies (plus your annotated version) of each potential exhibit. One must carry all of them onboard or risk the checked bag getting lost and then organize all these papers upon arrival at the deposition. One evening, in the taxi ride to the airport after a deposition, I decided there must be an easier way. Below, I will explain how to take depositions into the 21st century and utilize already available or readily available and inexpensive technology. These so called “Digital or Paperless Depositions” will catch on and become commonplace. In an effort to save space, it is assumed that the reader of the article has some technological skill and can perform basic computer and iPad functions without detailed instruction.
Before the process is explained, I must provide a “shopping list” of what is absolutely necessary. Depending upon one’s style and preference, it ispossible to add or remove certain of these devices. To begin, one needs three iPads (or other similar tablets) with Dropbox (or other similar cloud service app installed). iPads are versatile and can be utilized for many other tasks around the law office. To enhance the deposition and ensure seamless technological operation, one should also consider investing in the following: a laptop, a cellular internet hotspot, and the PDF Expert app (available on iTunes). The additional items permit more flexibility and control over the deposition.
It is best to “go digital” when one first starts preparing for a deposition. Many still prefer to review hard copies of documents; however, if one can make the switch to reviewing documents electronically, organization and efficiency will improve. To begin, one needs to have the potential exhibits OCR’d into a searchable PDF form. Copy (do not use the original) the documents into the Dropbox folder and then import them into PDF Expert (a simple function contained within PDF Expert). Utilize PDF expert to review documents, highlight important sections, and make notes all on the iPad. The beauty of this is that the potential exhibits are annotated electronically and they can be accessed instantly from anywhere in the world, including by assistants, associates, or partners.
Now that all the potential exhibits are annotated, one needs to prepare two iPad’s for the witness and defense counsel’s use. While the witness will not have time to peruse the iPad looking for upcoming documents, opposing counsel may attempt to snoop. It is best to remove all email, extraneous apps, and personal items from these two iPads.
It is decision time. Will there be two lawyers on deposing attorney’s side, one taking the deposition and one managing the documents? If so, there are more options. Assuming there are two lawyers, one will need him or her to run the exhibit distribution from a laptop. Install Dropbox on the iPads and laptop, linking all three together via the cloud under one Dropbox account. This is important: one will need access to reliable internet for all three devices. When a document is placed in Dropbox on the laptop, it is sent via the internet to both iPads instantly. Save a clean copy of each potential exhibit into a folder on the laptop, naming them by their Bates number. The lawyer taking the deposition should have his or her own iPad with the annotated versions of documents for review. These documents should be loaded prior to the deposition into PDF Expert and are stored on the iPad’s hard drive for immediate access. If there will only be one lawyer taking the deposition, he or she can still take a paperless deposition but the set up should look slightly differently. First, he or she must prepare the iPads and pre-load all potential exhibits. The good news with this set up is that internet access is unnecessary because all the potential exhibits are pre-loaded. But wait—would this permit the witness and defense counsel to peek at all the exhibits before being questioned about them? One suggested solution is to add dozens of irrelevant documents to the Dropbox folder, essentially creating too many documents for them to realistically review. The deposing lawyer’s iPad should only have the relevant documents. When one is ready to discuss an exhibit, he or she merely points the witness to the appropriate document by its file name.
At this point, the iPads, potential exhibits, and laptop are prepared. Reliable internet access on all three devices is confirmed, and the paperless deposition is ready to begin. The deposing attorney, as the questioner, should look to the second lawyer to manage the documents in order to permit the questioner to focus on questions and answers. The second lawyer’s job is to manage the document distribution process and “send” the called for exhibit to the iPads at the appropriate time. The set up should look like this: the questioning lawyer has an iPad with every potential annotated exhibit preloaded in PDF Expert, the witness and defense counsel have iPads showing the Dropbox homepage without any preloaded exhibits, the second lawyer has a laptop with every potential clean exhibit preloaded as well as Dropbox. Ensure that all devices are connected to the internet.
Why go digital? While going digital is an initial monetary investment, one must consider the savings on paper, printing, baggage fees, shipping costs, and time. Many of these digital items are already available and one will only need to apply existing technology for use in a paperless deposition. Instead of juggling reams of paper to review exhibits while travelling, it is now possible to look at every annotated document on a single iPad while continuing to make notes. One can add documents at the last minute and even during the deposition, if something comes up during the deposition. While there are many advantages to a paperless deposition, one should be aware of the pitfalls. While using the two lawyer approach, fast and reliable internet is imperative (4g connection is sufficient). Witnesses and opposing counsel may object; therefore, it is always best to confirm use of the paperless deposition prior to utilizing it. The paperless deposition works best for document intensive depositions, such as in mass torts or business litigation. It may be impractical for depositions with fewer than ten potential exhibits. Finally, practice using the paperless deposition technique prior to leaving the office.
This article was originally printed in the American Association for Justice’s New Lawyer Division Summer 2014 Newsletter. See the full newsletter here.