United States: Zooming Out: The Admissibility Of Depositions Recorded On Video Conferencing Platforms

Forbidden from in-person depositions during the COVID-19 pandemic, practitioners increasingly utilized Zoom, or its equivalent platforms, to perform virtual depositions.¹ The practice has continued. As many have realized, in addition to easing travel, Zoom reduces costs by allowing parties to record videos themselves through a simple button. But there's potentially a major problem. While not expressly required, some courts have interpreted the rules as requiring a "certified videographer" for the purpose of showing the jury that video. In fact, while it was ultimately resolved between the parties, attorneys at Eckland & Blando recently addressed this issue right before a trial, with the District Court being receptive to acknowledging a "certified videographer" requirement. Is that correct? We think not. But without clear Minnesota authority on the issue, the stakes are too high to leave it to chance.

Good trial attorneys know that there is simply no replacement for playing a recorded video deposition to impeach a witness at trial. A jury seeing the witness's facial expression, demeanor, or their pregnant pause can express credibility in ways that reading a dry transcript never will. Good litigators also know the importance of taking corporate depositions for trial. Under Minn. R. Civ. P. 32.01(b), the entire deposition can be shown to the jury. A strategically evasive or unreasonably combative witness will thus highlight her true character or purpose. The jury sees it all. And sometimes attorneys ill-advisedly designate a corporate representative—without telling her to behave—who will testify separately at trial. Here, the jury gets to see what she is actually like, without the gloss of trial preparation. It's a built-in impeachment. It might also decisively impact the entire case. That is, unless the court disallows use of the video during trial.

The Minnesota Rules

So what are the rules that could support a so-called "certified videographer rule" in Minnesota? There are essentially three. First, under Rule 28.01, "depositions shall be taken before an officer authorized to administer oaths by the laws of the United States where the examination is held[.]"² Second, relatedly, under Rule 30.02(d), that officer "shall being with a statement on the record ... that include (A) the officer's name and business address; (B) the date, time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation of the deponent; and (E) an identification of all persons present."³

Rule 30.02(d) then has an additional requirement that is potentially important. It states that if "the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. Minn. R. Civ. P. 30.02(d) (emphasis added). Finally, it should be mentioned that the comments to Rule 30.02(d) from 1993 address video recorded depositions, albeit in perhaps an antiquated way. The comment addresses who should retain custody of the "videotape" after "it has been sealed and marked," clarifying that attorneys should also retain custody for litigation purposes.⁴

The third relevant rule is more general. Under Rule 30.02(c), any "deposition pursuant to these rules may be taken by means of simultaneous audio and visual electronic recording without leave of court or stipulation of the parties if the deposition is taken in accordance with the provisions of this rule."⁵ Together, these three rules—which largely mimic the Federal Rules—provide the opportunity to record depositions by video, while confirming the need for a formalized and independent party to officiate the deposition and ensure its accuracy.

Court Decisions

The determinative question is whether these rules demand that a "certified videographer" officiate the recording of a deposition—or alternatively, perhaps, whether some other equitable or evidentiary rule provides for the same. There is unfortunately no Minnesota case authority on this question. Looking elsewhere, the majority position is that depositions taken before an officer authorized to administer oaths (e.g., stenographer or court reporter), and that also comply with the other deposition requirements, should be admissible without the need for a distinct certified videographer. The minority position is that a video recording is independent from the written transcript, and its use in a trial must come with certifications from an individual who can verify the recording apart from the transcript. We'll look at this diverging caselaw.

With the majority, federal courts in Montana,⁶ Oklahoma,⁷ North Carolina,⁸ New York,⁹ Iowa,¹⁰ Utah,¹¹ and California¹² have held that deposition recordings are admissible without a certified and/or independent videographer. Conversely, a federal district court in Illinois, in Alcorn v. City of Chicago, has taken the opposite position.¹³ Alcorn may seem like merely an outlier or legal anomaly but its published status make it a potentially persuasive case for a Minnesota judge without any binding case authority to direct the outcome.

Let's start by analyzing the majority view. Federal courts have been grappling with analogous issues for over fifty years, starting in 1972 when, in Marlboro Production Corporation, the Southern District of New York held that audio recordings do not need an independent operator.¹⁴ The Marlboro court came to this conclusion based on the straightforward principle that members of the bar can be trusted to handle simple technology and not modify recordings.¹⁵ Common reasons federal courts have held recorded video depositions to be admissible at trial include (1) the official transcript being able to verify the accuracy of the video deposition,¹⁶ (2) the nearly non-existent risks against the substantial costs,¹⁷ and (3) the fact that the Federal Rules of Civil Procedure already has set guidelines and protections that need to be followed.¹⁸

Breaking from the clear weight of authority, the United States District Court for the Northen District of Illinois held in Alcorn v. City of Chicago that the lack of a certification for a recording meant there would be "no certification that the Zoom video recording accurately captures the testimony of the deponent."¹⁹ Although the Alcorn court listed a number of supporting cases, they were all inapposite as they dealt with situations where the deposition did not otherwise comply with the Federal Rules of Civil Procedure.²⁰ Despite this, the Alcorn court excluded the deposition recording for lack of certification, creating a minority position that a zealous litigant could attempt to exploit.

Overall, the case law and, frankly, common sense, strongly favors admitting depositions recorded via Zoom without a certified videographer. The benefits of these videos being admissible significantly outweigh the costs, especially given that the transcript can be used to challenge the recording if necessary. And, nothing in the text of the civil procedure rules requires a certified videographer. But, unfortunately, there is no guarantee that a court will permit Zoom-recorded deposition unless a certified videographer clicked the record button. To avoid an unwelcome surprise of video depositions being excluded, litigants have several options.

Practical Advice

One, they can return to using certified videographers, or ensure they have someone at the firm certified to press the record button. More efficiently, attorneys can and should obtain opposing counsel's consent, ahead of time and on the record, to record the deposition without the need for a certified videographer. If they object, then attorneys could seek declaratory judgment on the admissibility of the deposition before discovery closes, secure in the knowledge that case law goes substantially in their favor.

Thankfully, these steps may only be necessary for a short period of time. On January 17, 2024, the Advisory Committee on the Minnesota Rules of Civil Procedure recommended an amendment to Minn. R. Civ. P. 30.02 to specifically provide that a certified videographer is not required for videoconference recordings. Assuming the Minnesota Supreme Court adopts this change, litigators will be free to focus on the substance of their depositions, rather than worrying about an eve of trial tactic to exclude their recordings.

Footnotes

1 Research and drafting assistance provided by Jacob Bourgault, law clerk at Eckland & Blando.

2 Minn. R. Civ. P. 28.01.

3 Minn. R. Civ. P. 30.02(f).

4 Minn. R. Civ. P. 30.02 Advisory Committee Comment---1993 Amendments.

5 Minn. R. Civ. P. 30.02(c).

6 Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552 (D. Mont. 2009).

7 Ott v. Stipe L. Firm, 169 F.R.D. 380 (E.D. Okla. 1996).

8 Rice's Toyota World, Inc. v. Se. Toyota Distributors, Inc., 114 F.R.D. 647 (M.D.N.C. 1987).

9 Marlboro Prod. Corp. v. N. Am. Philips Corp., 55 F.R.D. 487 (S.D.N.Y. 1972).

10 Am. Gen. Life Ins. Co. v. Billard, No. C10-1012, 2010 WL 4367052 (N.D. Iowa Oct. 28, 2010).

11 Maranville v. Utah Valley Univ., No. 2:11CV958, 2012 WL 1493888 (D. Utah Apr. 27, 2012).

12 Carpenter v. Forest Meadows Owners Ass'n, No. 1:09-CV-01918-JLT, 2011 WL 3207778 (E.D. Cal. July 27, 2011).

13 Alcorn v. City of Chicago, 336 F.R.D. 440, 441-45 (N.D. Ill. 2020).

14 Marlboro Prod. Corp. v. N. Am. Philips Corp., 55 F.R.D. 487, 489-90 (S.D.N.Y. 1972).

15 Id.

16 Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 556 (D. Mont. 2009); Carpenter v. Forest Meadows Owners Ass'n, No. 1:09-CV-01918-JLT, 2011 WL 3207778, at *8 (E.D. Cal. July 27, 2011).

17 Ott v. Stipe L. Firm, 169 F.R.D. 380, 381 (E.D. Okla. 1996); Rice's Toyota World, Inc. v. Se. Toyota Distributors, Inc., 114 F.R.D. 647, 651 (M.D.N.C. 1987).

18 Am. Gen. Life Ins. Co. v. Billard, No. C10-1012, 2010 WL 4367052, at *5 (N.D. Iowa Oct. 28, 2010) (citing Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552 (D. Mont. 2009)); Maranville v. Utah Valley Univ., No. 2:11CV958, 2012 WL 1493888, at *2 (D. Utah Apr. 27, 2012).

19 Alcorn v. City of Chicago, 336 F.R.D. 440, 442 (N.D. Ill. 2020).

20 See, e.g., Schoolcraft v. City of New York, 296 F.R.D. 231, 239 (S.D.N.Y. 2013) (excluding the recording for a lack of proper notice); C.G. v. Winslow Twp. Bd. of Educ., No. 13-6278, 2015 WL 3794578, at *2-3 (D.N.J. June 17, 2015) (refusing to overturn the magistrate judge's decision to exclude the evidence without a finding of "clear error"); O'Boyle v. Sweetapple, No. 14-cv-81250, 2016 WL 3647599, at *2-3 (S.D. Fla. June 30, 2016) (finding that the video taken on plaintiffs phone must be given to the other party).

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