Civil Litigation Discovery Legal Topics Litigation Strategy

Do You Really Want the Depo on Video?

Video recording of depositions is very common and is clearly more effective in capturing  a witness’ demeanor than a written transcript. But there are also downsides to video recording a deposition and a serious expense involved. Don’t just jump to record — weigh the pros and cons in every case. California law provides that depositions may be video recorded in addition to the required stenographic recording as long as (CCP §2025.330(c)):

  • All parties agree; or
  • The noticing party so indicates in the deposition notice; or
  • Another party serves written notice on all other parties and any nonparty deponent of the intent to make a simultaneous recording of the deposition.

The party who requests video recording has to pay for it. See CCP §§2025.330(c), 2025.510(b), (h)(1). There are several advantages to videoing a deposition, including:

  • Generally, a deponent is more impressed with the solemnity of the occasion and may give more complete and candid answers;
  • Counsel may behave better at a recorded deposition, and you can expect fewer objections and other interruptions;
  • The camera may reduce the possibility of opposing counsel’s “coaching” witness;
  • Recording the deposition may enhance the credibility of testimony given;
  • Recording is returned to you promptly, unlike stenographic transcript, which may take as long as a month; and
  • You can use the video-recorded deposition of an available expert witness (CCP §2025.620(d)) and thus accommodate a reluctant or busy expert by preserving that expert’s testimony on video.

But the picture is not all rosy. There are also several disadvantages to video recording a deposition — most involving money — including:

  • Your costs of taking a deposition will be greater than taking a stenographically recorded deposition (e.g., cost of camera operator);
  • If the deposition is recorded stenographically and on video, as most are, you’ll have to pay for both camera operator and court reporter;
  • Your office or usual place for taking depositions may not be suitable for video recording, and you may need to arrange for an alternative site;
  • You may spend additional time during deposition, e.g., waiting for electronic storage unit to be changed, adjusting microphones; and
  • Your time and cost to plan the orderly presentation of the video recording at trial may be greater than using a written deposition transcript.

There are special considerations when you’re thinking about video recording a treating doctor’s deposition. It’s less expensive to record the deposition than paying for the doctor’s time in court and it allows you to present the testimony at a logical time during trial, rather than presenting live testimony out of order to accommodate the doctor’s schedule. But if you record the doctor’s deposition, you’re committed to what’s in the recording even if developments during trial might have otherwise led you to emphasize or deemphasize aspects of the doctor’s live courtroom testimony. Before you decide to video record a deposition, consider the advantages and disadvantages of doing so. If the disadvantages are outweighed, let the other parties know of your intention and let the recording begin! For everything you need to know about deposition procedures, CEB has you covered with its book California Civil Discovery Practice, chap 5, and its step-by-step Action Guide, Handling Depositions. © The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

13 replies on “Do You Really Want the Depo on Video?”

Julie is exactly right. I add the following to her caveats: If you are going to use the deposition as evidence at trial, many courts require that objections be presented and resolved in advance, so that the transcript can be redacted and the jury not exposed to testimony the court might instruct them to ignore. The cost of editing the videotape consistent with the court’s redactions, including technical costs and the costs of resolving editing disputes, can be significant. If the trial is a bench trial, or if the transcript “reads” well, using the videotape may not pass the cost-benefit test.

Thanks for adding these important points! In addition to the financial costs involved, do you think there are other goodwill costs? I’ve heard that some think videoing a depo is an “unsavory” intimidation tactic. What do you think of that perspective?

I see the cons. I like take video depos to stress their solemnity to the witness and avoid coaching during the depo.

Good job. I love these blogs. Thanks.

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