Disclaimer: This article is for educational purposes only. It does not provide legal advice, does not establish an attorney-client relationship, and should not be relied on for legal decisions. Always consult a licensed attorney regarding your specific case.
Remote depositions, which started as a pandemic-era accommodation, are now the default in most PI practices. The ABA House of Delegates ratified that reality in February 2023 by adopting Resolution 505 — Best Practices for Remote Depositions — which has since become the most-cited national framework for how virtual testimony should be conducted. Three years in, the open questions are no longer whether remote depositions are appropriate but how to implement Resolution 505's recommendations in cases where the stakes are significant and the parties' incentives diverge.
This article is for PI attorneys whose remote-deposition practice is mature enough to have encountered the edge cases — the witness who joins from a coffee shop, the defense attorney who insists on keeping the camera off during breaks, the dispute over recording — and who want a current read on where the practice has settled.
What Resolution 505 Actually Recommends
Resolution 505 is short — eleven principles, each followed by brief explanatory commentary — but its recommendations cluster into four areas:
Technology competence. Attorneys are expected to be competent in the technology used for remote depositions. The resolution echoes the broader trend in legal ethics — captured in the 2012 amendment to Model Rule 1.1 comment 8 — that technological competence is now part of competent representation. For remote depositions specifically, this includes understanding the platform's recording capabilities, screen-sharing limitations, breakout-room functions, and security features.
Identity verification. The resolution recommends verifying the identity of all participants, particularly the witness, at the start of the proceeding. The default protocol most experienced attorneys now follow includes photo ID verification on camera, an on-the-record statement of the witness's identity, and confirmation that the witness understands they are testifying under oath.
Security and confidentiality. Resolution 505 emphasizes that platforms must protect the confidentiality of the proceeding, that unauthorized recording must be prevented, and that participants must be confirmed to be in secure locations. Various professional liability carriers have endorsed similar protocols, and some have begun making them effectively mandatory through their underwriting requirements.
Conduct of the deposition. The resolution addresses concerns about coaching, witness preparation, and the unique procedural questions that arise when participants are not in the same physical space — including stipulations or on-the-record statements about communications during breaks.
The resolution explicitly leaves jurisdictional rules to the jurisdictions. It is a baseline for best practice, not a uniform standard with enforcement mechanisms. Its practical force lies in the fact that opposing counsel, courts, and discovery referees now routinely treat it as the reference document when disputes arise.
Identity Verification: What the Record Should Show
Identity verification, as a practical matter, is now where many disputes begin. The defensible protocol — the one that a court asked to rule on a later dispute about who actually testified will find sufficient — has three components.
First, a visual identification at the start. The witness shows photo ID on camera, the court reporter notes the identification on the record, and the document is briefly captured (without zooming in to expose sensitive identifying numbers). Some practitioners ask the court reporter to retain a screenshot in the litigation support file; others rely on the verbal record.
Second, an on-the-record statement of identity, including the witness's full legal name, date of birth, and current address. This is the standard the court reporter administers as part of the oath.
Third, a room check. The questioning attorney asks the witness to confirm that they are alone in the room, to identify any electronic devices that are powered on, and to commit on the record to not communicating with anyone (including counsel) during the substantive portion of the deposition.
The room check is the component that has evolved most since 2023. Initial implementations were brief; current best practice includes confirming that no second screen, second device, or shared document is open in the witness's view, and that the witness understands that breaks are subject to their own rules.
The Coaching-During-Breaks Question
This is where Resolution 505 leaves the most room for genuine disagreement, and where the practice has not settled.
The traditional rule, articulated in Hall v. Clifton Precision Products Co., 150 F.R.D. 525 (E.D. Pa. 1993), is that an attorney may not confer with a witness during deposition testimony except on questions of privilege. Whether this extends to breaks — and especially to breaks the witness requests — is contested.
The hard-line view, increasingly common in plaintiff's-bar practice, is that breaks during testimony should be treated the same as the substantive portion: no communication between the witness and defending counsel about the substance of testimony. This view is supported by Hall and by the cluster of cases following it that find conferences during breaks to constitute impermissible witness coaching.
The more permissive view, common among defense attorneys, is that breaks (especially scheduled lunch breaks) are not part of testimony and that ordinary attorney-client communication is permissible during them. This view typically distinguishes between breaks that occur mid-line-of-questioning (more restricted) and breaks at natural transition points (less restricted).
Resolution 505 does not resolve this dispute. Its commentary suggests that stipulations or on-the-record statements about break-time conduct should address the question explicitly. The practical implication is that the questioning attorney who cares about this issue should raise it at the start of the deposition, get an on-the-record agreement, and treat any departure from that agreement as a basis for later motion practice.
The defensible practice for defending counsel — particularly in PI cases where the deposition transcript will drive settlement value — is to confirm at the start of the deposition that no communications with the witness about substantive testimony will occur during breaks, regardless of duration. The defending attorney who wishes to preserve their right to confer with the client about strategy, scheduling, or non-substantive matters can carve those out explicitly.
Jurisdictional Rule Updates Since Resolution 505
Several jurisdictions have updated their procedural rules in response to remote-deposition practice, with varying degrees of alignment to Resolution 505.
Some federal districts have adopted standing orders requiring remote-deposition protocols similar to the resolution's recommendations. Others have left the question to individual case management.
State court treatment varies. Some states have amended their civil procedure rules to explicitly authorize remote depositions and to set forth identity-verification requirements. Others continue to operate under the pre-2020 framework, treating remote depositions as authorized by agreement or by court order but without specific protocol requirements.
A practical implication: in cases where remote depositions are proposed and the jurisdiction lacks specific rules, the operative document is typically a stipulation between counsel. Resolution 505 supplies the template most stipulations now draw from. Plaintiff's attorneys who circulate proposed stipulations citing Resolution 505 typically establish the protocol on favorable terms; those who agree to undefined remote-deposition arrangements without protocol terms often find themselves in disputes about identity, coaching, or recording later.
Security: What's Changed Since 2020
The security architecture for remote depositions has matured significantly. The risks that initially drove concern — Zoom-bombing, unauthorized recording, eavesdropping by household members — are now addressed by platform-level controls and procedural protocols. Current best practice includes:
- Use of a legal-specific platform (rather than consumer Zoom) that supports waiting rooms, controlled admission, role-based permissions, and integrated court-reporting workflows.
- Unique meeting links per deposition (not standing meeting rooms), distributed only to authorized participants.
- Confirmation, on the record, that no one is recording the proceeding except the official court reporter and authorized videographer.
- Confirmation that document-sharing is controlled and that participants cannot independently download exhibits without authorization.
The shift since 2020 is from "is this secure enough" to "is this documented enough." The deposition that proceeds without documented security protocols can later be challenged when something goes wrong. The deposition that proceeds with stipulated protocols and on-the-record confirmation provides the record that resolves disputes.
What Resolution 505 Does Not Address
Resolution 505 is silent on several practical questions that experienced practitioners encounter routinely.
Witness coaching by non-attorneys. The resolution addresses attorney conduct but does not specifically address the situation in which a witness is being coached by a family member, business partner, or other non-attorney off camera. The practical response — room check, on-the-record commitment to no off-camera communications — derives from Resolution 505's logic but is not explicitly required.
Document handling during testimony. Remote depositions have generated new disputes about how exhibits are introduced, marked, and viewed. Resolution 505 says little about exhibit protocols, leaving practitioners to develop case-by-case approaches. Most experienced firms now use exhibit-sharing platforms that integrate with the court-reporting workflow and that track who viewed which document and when.
The technical failure question. What happens when the witness's connection drops mid-question? Resolution 505 does not address technical-failure protocols. Most experienced practitioners pre-stipulate that the deposition pauses on technical failure and resumes when stable, and that the questioning attorney has the option to either repeat the prior question or move on.
Frequently Asked Questions
Can a deposition be conducted remotely without the parties' agreement?
This is jurisdiction-specific. In federal court, FRCP 30(b)(4) permits a deposition to be taken by remote means by stipulation or court order. Many courts will order remote depositions over objection where the proponent shows that remote means are reasonable and the objection lacks substantive grounding.
Is video recording of remote depositions automatic?
No. Video recording must be noticed under FRCP 30(b)(3) or by agreement. In remote depositions, the platform itself often produces an automatic recording, but the recording's status as the official record requires party agreement or court authorization.
Does Resolution 505 apply to non-litigation depositions?
The resolution is framed around civil litigation depositions but its principles — technology competence, identity verification, security, ethical conduct — apply by analogy to arbitral depositions, administrative depositions, and similar proceedings.
What is the cost differential between remote and in-person depositions?
Most experienced practitioners report 25-40% cost savings on remote depositions, driven by elimination of attorney travel time and venue costs. The savings are partially offset by additional technology costs and, in some cases, by longer deposition durations as exhibit handling takes more time remotely.
Closing
Resolution 505 is a useful baseline, but the working PI attorney's takeaway is that the most contentious questions — the coaching-during-breaks question, the identity-verification question, the exhibit-handling question — are negotiated in the stipulation that governs each individual deposition. The attorney who treats the stipulation as a formality often finds themselves in disputes that the stipulation could have prevented. The attorney who treats the stipulation as a strategic document — and who builds in the protocols that protect their case theory — typically obtains a record that survives later challenge.
For PI firms whose practice now includes routine remote depositions, the investment in protocol-grade stipulations and platform-grade technology is the difference between depositions that produce usable transcripts and depositions that produce future motion practice.