1. You’re on stage.  Witnesses must look credible at all times.  This includes not only during responses, but between questions, between answers, and during any delays.  Giving a video deposition means that a witness must develop a level of self-awareness beyond that which is required for a transcribed deposition.
2. Non-verbal behaviors are key.  Non-verbal behaviors are extremely important in communicating credibility, and due to the nature of the camera, these behaviors are magnified.  Therefore, distracting behaviors must be eliminated or minimized.  Straightening a tie, twirling a piece of hair, adjusting glasses or shifting around in a chair are signs of nervousness.  Nervousness can be interpreted as defensiveness or as having something to hide, so a calm and credible presence is crucial in a video deposition.
3. Possible trial testimony.  In some states, video depositions can be used in lieu of live testimony even if the witness is present in the courtroom.  As such, you need to prepare the witness as you would for testimony in front of a jury.  Substantive preparation is extremely important for video depositions because unprepared deponents not only make errors, they appear nervous.  As noted earlier, the camera exaggerates this appearance.

Given these aspects of video depositions, the following are just a few hints for effective testimony:

• Be aware of non-verbal communication.  Effective non-verbal communication includes leaning forward, listening attentively, and using only minimal hand gestures.  Do not allow the deponent to sit in a swivel chair or he/she will undoubtedly swivel in it!  Eye contact should be directed toward the questioner, not at the camera directly.  (The camera can be placed such that it is shooting over the shoulder and slightly to the side of the deposing attorney; or it can be set for a side shot of both the deposing attorney and the deponent, or just the deponent.  The over-the-shoulder-shot is preferable if the tape will be used in court because it allows the jury to see the witness’s facial expressions.)
• Conservative clothing is a must for a video deposition.  A dark business suit with a light blue or white shirt is appropriate for a man, a suit or sedate dress for a woman.  Jewelry, make-up, and hair should be simple and neat.
• Keep the background simple.  A plain wall, a law library bookshelf, or a simple drape is a good backdrop.  Anything too busy will be a distraction to the viewer.  Under no circumstances should the background be windows with outside light entering the room.  Lighting should be bright, soft, and even.  Shadows behind or on the witness’s face are distracting.
• Be aware that time has greater significance in a video deposition.  The customary instruction to the witness is to pause and take time before answering.  On a videotape, the pauses seem longer; pauses suggest to jurors that the deponent doesn’t know the answer to the question.  As such, in a video deposition, witnesses should answer as quickly as they can after listening carefully to the question.  Since juries are also bored by long delays, an effort should be made to have the camera turned off when the deponent is reading a long document.  Witnesses should be instructed not to play with or linger over documents after they have reviewed them, but rather should look up and listen for the attorney’s question.
• Beware of technical problems and plan ahead.  For example, having individual microphones for the attorney and for the deponent works best for sound quality.  A simple “lavaliere” microphone, clipped to each individual’s jacket, is the best way to do this.  A single microphone in the middle of the table tends to pick up background noise and produce uneven sound.  Hiring a professional videographer who will monitor the audio and video content of the proceedings is a must.

Overall, the video deposition presents distinct challenges for attorneys and witnesses.  We find the best way to assure that a video deposition is successful is to conduct the witness preparation on videotape, before the actual deposition takes place.  The attorney and a communications specialist can provide feedback to the witness long before the session is scheduled.  In this way, you can be assured that the witness’s performance will be one you and the camera won’t want to forget.

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Legal Issues Involving Video Depositions Revisited
By David B. Markowitz, Lynn R. Nakamoto

Back in 2001, we prepared an article for the Litigation Journal summarizing then current law governing the taking of video depositions in Oregon state and federal courts. Since then, the federal rule citations have slightly changed, so we are taking the opportunity to revisit some of the rules and developments in the taxation of costs relating to video depositions in federal actions, including a ruling last year from the District of Oregon.

The general right to videotape.
In state court, the rules are unchanged. Under ORCP 39 D(2), a deposition is recorded stenographically, or else a party “shall designate the manner of recording and preserving the deposition” in the notice if “by other than stenographic means.” ORCP 39 C(4). By doing so, a party has a right to videotape the deposition. State ex rel Anderson v. Miller, 320 Or 316, 318-19, 882 P2d 1109 (1994). For cause, the right may be curtailed. See ORCP 39 C(4) (for accuracy); ORCP 36 C (protective order); ORCP 39 E (judicial control once the deposition has begun).

In federal court, the numbering and wording of the provisions within FRCP 30 relating to video recordings has changed somewhat, but their substance remains the same. Pursuant to FRCP 30(b)(3), a party “must state in the notice the method for recording the testimony,” and “[u]nless the court orders otherwise, a deposition may be recorded by audio, audiovisual, or stenographic means.” As in Oregon courts, a party in federal court may seek a protective order pursuant to FRCP 26(c) or FRCP 30(d)(3).

Opportunities for multiple means of recording the deposition.
If recording only by non-stenographic means is noticed, ORCP 39 D(2) allows another party or the deponent to have a transcript made upon its request and “payment of the reasonable charges therefor.” FRCP 30(b)(3)(A) provides that “[a]ny party may arrange to transcribe a deposition,” and FRCP 30(b)(3)(B) provides that another party may designate an additional means of recording the deposition and bears the expense “unless the court orders otherwise.”

Recovery of videotaped deposition expenses as a taxable cost.
No recovery of deposition costs remains the rule in Oregon under ORCP 68. On the federal side, though, more courts have weighed in on the issue of whether expenses related to videotaping a deposition may be awarded as costs under 28 U.S.C. § 1920(2). Section 1920(2) allows costs to be taxed for “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.”

Though the Ninth Circuit has not yet addressed the issue, the District of Oregon ruled on it last year. In Nederhiser v. Foxworth, No. CV 05-787-KI, 2007 WL 1378602 (D. Or. May 7, 2007), the defendants sought costs for both stenographic deposition transcripts and for videotaping the deposition of the plaintiff. Id. at *2. The district court recognized that several courts have awarded costs for both videotaping and the transcript. The threshold for an award of such costs in the District of Oregon, however, is a showing that “both are reasonably necessary for the litigation.” Id. The district court ruled that the defendants’ justification for videotaping as well as stenographically recording the plaintiff’s deposition—the defense plan to use video excerpts at trial and the transcript for summary judgment—was insufficient. Id. The district court concluded that “something more is needed beyond convenience or duplication to ensure alternative methods of presenting materials at trial.” Id. (quotation and citation omitted). The Fourth Circuit also permits the cost of either a stenographic transcript or videotaping a deposition to be taxed as a cost, but not both, in the absence of a showing that both were necessarily obtained for use in the case. See Cherry v. Champion Intern. Corp., 186 F.3d 442, 449 (4th Cir. 1999).

The Nederhiser ruling falls between the circuit decision that disallows videotaping as a cost, seeMota v. The University of Texas Houston Health Science Center, 261 F.3d 512, 529-30 (5th Cir. 2001) (§ 1920 should be strictly construed; it has no provision for videotapes of depositions), and the holdings of the majority of circuits to speak on the issue, which generally allow costs for both videotaping and stenographic transcripts. E.g., Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir. 1996).

In Morrison, the Eleventh Circuit read § 1920 in light of FRCP 30, which permits video and dual recording, and discussed the issue in detail in a case that was tried to a jury. The court held that “when a party notices a deposition to be recorded by non-stenographic means, or by both stenographic and non-stenographic means, and no objection is raised at that time by the other party to the method of recordation,”then it is appropriate to tax “the cost of conducting the deposition in the manner noticed.” Id. at 465. The court reasoned that a stenographic transcript is not obtained merely for the convenience of coun counsel because of the rule requiring that designations of deposition testimony to be presented at trial include a transcript of pertinent portions of the deposition if not taken stenographically, now FRCP 26(a)(3)(A)(ii), and the rule that a party must provide a transcript of any deposition testimony offered at trial, FRCP 32(c).Id. at 465 n.5.

Three other circuits have agreed with the Eleventh Circuit. See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997) (“in most cases, a stenographic transcript of a videotaped deposition will be ‘necessarily obtained for use in the case’” as required by § 1920); BDT Products, Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419-20 (6th Cir. 2005) (approving Tilton and holding the district court did not abuse its discretion in awarding costs for transcripts plus “charges for video services, rough disc, interactive real-time, video tapes, and the synchronization of the video and deposition transcripts”); Little v. Mitsubishi Motors North America, Inc., 514 F.3d 699, 701-02 (7th Cir. 2008) (given that Rule 30 does not now require a party to arrange for a transcript “at its own expense” when the deposition is recorded by non-stenographic means, expenses for both can be taxed as costs).

The district court in Nederhiser referred to case law from all of the circuits noted above. However, the court did not discuss and reject the reasoning from the cases expressing the current majority rule. The result also apparently turned on the extent of the explanation offered for the necessity of both videotaping and a transcript. And, the cost bill in Nederhiser was not submitted after a trial, where the videotapes were actually used to present evidence. For these reasons, it appears possible for prevailing litigants to expand on the Nederhiser ruling and recover costs for videotaping depositions given the right case.

This article appeared in the summer 2008 issue of the Oregon State Bar's Litigation Journal. To download this article and the full issue, go to the OSB Litigation Section's Web site athttp://www.osblitigation.com/lj2008-summer.pdf.