Technology Review: The Ins and Outs of Real-time Electronic Deposition

Thomas P. Redick and Amy Smith

Note: The owners of LiveNote® have not offered any inducements for this review other than the efficiency offered by the product.

Deposition testimony in toxic tort litigation can quickly add up to thousands of pages of testimony, with issues scattered among the testimony like needles in a haystack. As court reporters have migrated en masse to computer technology (stopping short of replacing themselves with tape recordings or voice recognition technology, of course), the availability of testimony in the form of data has opened new horizons for practitioners. This article will review some of issues raised in the use of the proprietary software LiveNote®, which allows realtime deposition testimony appear on the attorney’s laptop computer. We will provide a general discussion of some of the available deposition testimony database tools. We encourage communication of other war stories for publication in future issues of this newsletter. The authors welcome discussion via Email of the issues raised below.

Using LiveNote® for Deposition and Hearing Testimony

Since the authors use LiveNote® for real time deposition reporting and for storage of retrievable electronic testimony, this software program is the primary focus of the article. With a case of any size, the use of ASCII data for deposition testimony provides an attorney with the ease of searching and editing that comes with word processing data. A motion to compel deposition testimony can be spliced together from an electronic transcript of the deposition and any prior rulings of the court or discovery referee (which can also be recorded on LiveNote®).

In environmental and toxic tort matters filed during the information age, information technology will become the defining standard for efficient, competent deposition practice. In a typical mass tort or environmental litigation matter, the parties can devote substantial time organizing and reviewing deposition testimony (including straight summaries). The benefits of testimony databases for complex multi-party litigation are now self-evident to those who have learned to use them well. See, e.g. John H. Jessen, Electronic Data Discovery: A Powerful Tool For a New Environment, Law Technology, 1992, at page 21.

In a large case, as testimony begins to pile up, a well-planned issues database can provide significant benefits. The program allows the attorney or summarizing paralegal to note issues in the electronic text for speedy retrieval of testimony by subject matter. When dispositive motions are being contemplated, the undisputed facts relating to certain issues (e.g. statute of limitations) can be quickly extracted and motion viability evaluated quickly. The preparation of the motion can feature text lifted directly from depositions into the word processing program, speeding the preparation of points and authorities.

A typical toxic tort case may present a myriad of possible issues. It is important to make good decisions at the outset, as is true with any good plan for managing any database. Wise decisions made at the beginning will pay off in highly searchable, validated search fields. It is important to make categories broad enough to avoid the inconsistent applications that can result when there are too many issues (and a flummoxed issue coding paralegal or attorney misapply the issue, rendering future searches incomplete). User friendly issues that are easily applied will pay off, and it does not hurt to run a few "Beta test" issue coded summaries to determine what logical inconsistencies might arise as issues are applied to testimony.

Picking Issues and Categories

Approaches to LiveNote® issue codes will vary considerably depending upon the needs of a particular case. The following issue codes are among those worth considering in a typical personal injury toxic tort case:

• Background: Residence, Education, & Employment;
• Exposure: Location, Level, Duration, & Witnesses;
• Alternative Causes for Symptoms;
• Notice of Basis for Claim for Injuries (Statute of Limitations);
• Warnings About Dangers (Any testimony about warnings received or awareness of the dangers of contact with the toxic substance);
• Witnesses’ Medical History: Symptoms, Complaints & Treatments; and
• Witnesses’ Testimony: Preparation for and Refusal to Answer.

The final item – instruction not to answer – is perhaps the most critical field to mark, given the potential for this feature to expedite preparation of a motion to compel testimony. The attorney taking the deposition or the person summarizing the deposition afterward should note each time the deponent is instructed by counsel not to answer a question. The information sought in the questions should be included in the annotation.

Avoiding the Snafus and Snags

The minimum LiveNote® experience is fairly simple. The attorney links with the court reporter’s laptop, taking a feed of realtime deposition testimony. Many attorneys simply keep a window with their outline of the deposition open, while watching the testimony scroll past on the other window. The age-old tradition of asking the court reporter to fumble through a pile of rectangular paper punched with holes has been replaced by the "page up" feature or "search key word" that allows retrieval of questions that require repeating.

During breaks in the deposition, the testimony heard to date can be scrutinized to see if it is as "clean" and damaging as the deposing attorney thought it might be. If the record is not clear, further questions can improve the quality of testimony (subject to the inevitable "asked and answered" objection).

As with any technology, there are snafus and glitches that can occur. Some seasoned environmental and toxic tort litigators have reported unpleasant experiences with real time deposition reporting and databases in the past. Other attorneys have grown dependent on the technology and swear by it.

However, even those attorneys that grow dependent upon that real time LiveNote® feed may feel abandoned if technical difficulties arise that prevent them from getting the live feed. The technical difficulties are sometimes not the fault of the unprepared reporter, but an over-equipped attorney. The latest gadgets, like a Palm Pilot® personal organizer, may cause problems with your "port" rendering a LiveNote® feed difficult. Arriving a half hour before the deposition to debug any such issues will make sense for any attorney counting on LiveNote® in a deposition.

War stories about these difficulties with the software or hardware may make the rounds among seasoned trial attorneys who are more wary of new fangled technology. Since the scrolling testimony and searches may be distracting to many deposing attorneys, searches may need to be conducted by an assistant attending the deposition (or used sparingly until the break in the testimony). Real time reporting allows the attorney to satisfy herself that she has the testimony "clean" and ready to eat (i.e. for force-feeding in cross examination) before she concludes the deposition.

Unlike document management database investments, which are often useful only where a significant investment is made, the use of LiveNote® will not represent a large investment of capital (and it may reduce the investment of personnel required for summary and analysis of depositions). As the technology and expertise in imaging and databases advance, vendors are providing integrated services that lower the overall costs and link the deposition testimony to the document database for ease of retrieval.

Efficiency in Deposition Management Through Trial

With an electronic deposition database, preparation of cross-examination is greatly simplified. For example, in a recent case involving several hundred depositions relating to various waste sites, with thousands of employees handling hazardous chemicals over 40 years, a deposition database search brought together groups of persons testifying about common subjects (e.g. safety training at one site). In cases where a few hundred needles are scattered through a haystack containing thousands of transcripts (e.g. statute of limitations facts), issue coding will allow ready retrieval of the testimony. When personal injury plaintiffs are making allegations about exposures occurring over many decades, with mutually supportive testimony (or conflicts), those needles in the factual haystack may emerge in a few searches.

Armed with these exhibits and LiveNote® real time court reporting, the deposition process can become an exercise in electronic scripting of the testimony you want to use in cross-examination. Full text imaging is fast becoming standard operating procedure for testimony management, with real time deposition reporting allowing a court reporter to provide an attorney’s laptop with live testimony for instant retrieval during the deposition. When key documents are also on the litigator’s laptop, searchable by key words, trial examination can be even more effective.

The deposition testimony can combine with other technology enhancements to make more effective exhibits at trial. Imaging technology can also be used at trial to project video testimony onto a screen, or deposition excerpts combined with exhibit excerpts. Enhancement of excerpts of documents can help to illustrate key terms and compare the evasive testimony to the impeaching document. When combined with replay of video testimony, key segments of the trial are projected for the jury like a documentary film. Trial lawyers hoping to connect with juries that get most of their information from a screen (TV or computer) may find this technology helpful in capturing and retaining the attention of juries.

The Link to Remote Expert Consultants

One of the most intriguing and potentially dangerous prospects of real time reporting under LiveNote® is the use of modems to link remote experts with the testimony as it is being recorded by the reporter. With an internet Email link, testimony can be reviewed by an expert consultant who comments on the opposing expert’s testimony before the deposition session has ended. The attorney taking the deposition can revisit areas that require clarification, or refine testimony in anticipation of cross-examination at trial (by reference to the specific findings of a scientific study). This can make for a more precise dissection of expert testimony in cross-examination at trial.

The power of this technique should not be underestimated. Everyone has heard stories of the expert witness who is so well prepared and knowledgeable that it seems impossible to pin down all the citations of support for opinions. In a case involving complex medical toxicology issues, there may be hundreds of studies that are potentially relevant. The experts’ "spin" on a study may be something that raises your own experts’ eyebrows upon reading the deposition. With real time reporting and a modem link to the deposing party’s experts, you can learn what your experts think while the testimony is in progress.

Accomplishing this link to a consulting expert will require internet links and appropriate software. As with any new technology, it should be beta tested by all the links before the deposition to troubleshoot any bugs. With expert depositions, the steady upgrading of telecommunications infrastructure and computer memory opens up broad new possibilities. Before attempting this in an important deposition, it may be advisable to test the link in a minor deposition (e.g. a treating physician) to ensure that an expert understands how to use the link properly.

The hazard for the unwary lies in the potential disclosure of your own experts’ opinions in Emails sent during the deposition to guide the deposing attorney. Experts that are going to be designated at a later date should not be used for this purpose (or if used, should communicate via cellphone off-line). The clever attorney who dissects the opposing experts with Emails from his own experts will find that his experts’ Emails are deposition exhibits subject to discovery in most jurisdictions. The rules regarding discovery of expert communications may limit the use of Email comments from testifying experts. For a non-testifying consultant, however, Email may provide the fasted way to impart detailed technical follow up questions in time to secure more precise deposition testimony on complex technical issues.

In sum, the future of deposition practice will increasingly play itself out in bits and bytes. For those attorneys who integrate these electronic tools effectively, there will be significant rewards in efficiency. Effective cross-examination of opposing experts may well be the most crucial moment in the trial of a toxic tort case – but not if the crucial information is unavailable in the moment of need. A process that begins with electronic deposition testimony may be the most effective way of ensuring that crucial information is ready and waiting at trial C meeting that crucial "30 seconds or forget about it" rule for information retrieval during cross-examination of an expert witness.

Thomas P. Redick is editor of the ABA Section of Environment, Energy, and Resources’ Toxic Tort and Environmental Litigation Committee Newsletter. Amy Smith is the director of Database Development at Chapin Shea McNitt & Carter.