Take a Video Deposition

Step-by-Step Guidance

Step 1: Prepare a notice of the video deposition.

• A deposition must be noticed as provided under the Michigan Court Rules. See Additional Practice Guidance, Governing Rules, for more on the rules generally. The notice must indicate that the deposition is to be videotaped. MCR 2.315(C)(1).
• The notice must be reasonable and must state the time and place for taking the deposition. It must also state the name and address of each person to be examined, if known. If the name is not known, the notice must state a general description sufficient to identify the person or the particular class or group to which the person belongs. MCR 2.306(B)(1). See Notice of Taking Video Deposition for a sample notice.
• If the deponent is to produce documents or tangible things at the deposition, the request for the documents should accompany the deposition notice. See MCR 2.305(A) (nonparties); MCR 2.306(B)(2) (parties). The procedures in MCR 2.310 apply to a party deponent.
• Note that the taking of video depositions is governed by the rules that apply to the taking of other depositions. MCR 2.315(B).

Step 2: Serve the deposition notice.

• For a nonparty deponent, have a subpoena issued for the person named or described in the notice. MCR 2.305(A)(1). The subpoena must provide at least 14 days after service for the requested act. MCR 2.305(A)(3). SCAO form MC 11, Subpoena, Order to Appear and/or Produce, was amended in October 2024 to facilitate notice under MCR 2.315(C)(1) by including a checkbox for denoting that a deposition will be visually recorded.
• For a party deponent, or for a deponent who is a representative of a corporate party, no subpoena is needed. Service on the party or party’s attorney is sufficient to require the deponent to appear. Id. However, when a party deponent is a corporate entity, the notice must be served at least 14 days before the scheduled deposition.

Step 3: Take steps to prepare the day before if needed, and carefully consider the room, seating, and camera setup for the deposition location.

• If conducting the deposition using two-way real-time audiovisual technology such as Zoom, some early steps are particularly helpful. The day before conducting a Zoom deposition, send your exhibits to the technician via email. Label them so that the technician who brings them on screen can easily identify them. Label the documents by letter and mark them numerically as deposition exhibits so you can request the technician to retrieve the documents as needed: “Please put up document F, and mark this as deposition exhibit #1.” This allows the technician to easily and quickly pull up the correct documents. Try logging in 10 to 15 minutes early to confirm that the technician has received all the exhibits. For more on Zoom depositions, see Step 6 and Practice Guidance.
• Attempt to take the deposition in a room or place that does not have a distracting background.
• Stark white walls will wash out the witness. Attempt to have a color contrast in the background. If necessary, obtain a screen background for use if a suitable background is not provided.
• If you are questioning the witness, sit as close to the camera as possible so that the witness will look into the camera rather than at you. Have the videographer set up the camera right next to you or behind your shoulder. Note that a professional videographer need not be used. See Practice Guidance.
• Be sure that microphones are set up so that the witness can be heard clearly. Keep in mind that the witness may have a soft voice. The person running the video camera should be alerted to adjust the volume when necessary.
• Instruct your witness about how to best present himself or herself on camera. See Instructions for the Witness.

Step 4: Make sure all provisions of MCR 2.308 are followed regarding notice and statements on the record for the deposition.

• Note that unless a party gives written notice of objection to irregularities or errors in the notice for taking the deposition, the objection is waived. MCR 2.308(C)(1).

Step 5: Carefully follow the requirements of MCR 2.315 for special procedures required in video depositions.

• Time the video deposition by a digital clock displaying hours, minutes, and seconds. The clock must be in the picture at all times while the deposition is being taken. MCR 2.315(C)(2).
• Be sure the deposition begins with a statement on camera of the date, time, and place in which the recording is being made, the name of the action, and the identification of the attorneys. MCR 2.315(C)(3). Most often, the court reporter makes this statement.
• Have an authorized person swear the witness on camera. MCR 2.315(C)(4). Most often, this is done by the court reporter.
• Strict compliance with the court rule is necessary. Warfield v Wyandotte, 117 Mich App 83, 323 NW2d 603 (1982).
• Also be aware of any special requirements in the pretrial order unique to the courtroom in which you are practicing. Some judges have limits on the number or length of video depositions. Be cognizant of any such rules in addition to the requirements under the Michigan Court Rules.

Step 6: While conducting the deposition, keep in mind that jurors will later be viewing the tape.

• Before beginning, politely ask the witness to turn off their phone. This prevents unnecessary distractions, prevents any communication during the deposition, and prevents the witness from looking things up while testifying.
• Try to avoid long pauses between your questions. These may bore the jury or make it appear that you are unprepared.
• If long pauses need to be taken during the deposition for such things as reviewing materials or off-the-record discussions, the attorneys can agree to go off the record. Unnecessary pauses will cause the jury’s attention to wander and ultimately cause the trial to run longer.
• Make your questions as concise as possible. Video depositions are harder for jurors to watch than live testimony. Therefore, the questions should be succinct and to the point.
• If using a videoconferencing technology such as Zoom, be prepared for technical problems. Zoom has been very effective, but it is not perfect. Sometimes parties will drop from the conference. Before you begin, get the court reporter’s or the opposing counsel’s phone number, in case you or they disconnect. You can call opposing counsel and advise of your status if you drop or ask about their status if they drop.
• If you are using Bluetooth to facilitate a Zoom deposition, it is good practice to have two devices. Use one and keep the other charging as a backup in case the one you are using dies. You can switch them out quickly and recharge the first one while using the second one.
• When using Zoom, it is good practice to mute your microphone when you are not speaking. This prevents unwanted feedback or other distracting background noise. If you need to speak (for example, to make an objection), you can unmute yourself to do. You can unmute yourself by holding the space bar down. As long as you hold the space bar down, you will be unmuted. For more on Zoom depositions, see Step 3 and Practice Guidance.

Step 7: At the conclusion of the deposition, indicate that the deposition is completed.

• See MCR 2.315(C)(7).

Step 8: Seal the videotape and mark it for identification purposes.

• See MCR 2.315(D). The person making the video recording must retain possession of it. Id.

Step 9: Follow the requirements of MCR 2.315(E) when a party requests that a deposition be filed.

• File the videotape with an affidavit identifying the recording, stating the total elapsed time, and attesting that no alterations, additions, or deletions other than those ordered by the court have been made. MCR 2.315(E)(1).
• Give notice under MCR 2.306(F)(3) regarding certification and transcription. MCR 2.315(E)(2).
• Serve copies of the recording on all parties who have requested it under MCR 2.315(D)(2). MCR 2.315(E)(3).
• Note that a video deposition cannot be electronically filed with the court under MCR 2.315(E).

Step 10: For all trial depositions, provide the court with a transcript or, alternatively, a stipulation by the parties that there are no objections to the deposition and that the recording may be played.

• See MCR 2.315(F)(3). Be sure that the deposition has been filed with the court as required by MCR 2.315(F)(1) if it will be used at trial.
  
  Note that costs may be taxed for a video deposition that is used at trial. MCR 2.315(I).

Step 11: Be sure to purge the video deposition transcripts before playing the video deposition at trial so the technician can edit the video ahead of time, or mute any stricken portions during playback.

• During video depositions there may be objections. There may also be exchanges that are not intended to be part of the record (for example, the attorneys may sometimes have an exchange). Such objections or exchanges will need to be stricken so that they are not heard at trial. If an objection is sustained, large portions of testimony may be stricken. Alternatively, some objections are overruled or voluntarily withdrawn by counsel, and those objections need to be stricken as well.
• Review the transcripts before trial with opposing counsel and strike what you are able to agree on as well as anything the court may order stricken.
• Pay close attention to the pretrial order of the courtroom in which you are practicing. Certain courtrooms have their own procedures and requirements pertaining to purging depositions, such as time frames to have the deposition purged (e.g., no later than two weeks before trial). Be aware of these so that you do not inadvertently run afoul of the court’s order.

Step 12: If certain portions of the deposition are not being played at trial, make sure the court indicates on the record what portions of the deposition have been played.

• See MCR 2.315(F)(4). See Practice Guidance for further discussion.

Step 13: If the case is appealed, make sure the videotaped deposition remains a part of the record and is transmitted with the record on appeal.

• See MCR 2.315(H).

When to Use

This How-To Kit provides guidance on the steps that should be taken, and those that are required, when a deposition is videotaped. If a witness cannot be produced live at trial, counsel should always consider taking a video deposition, unless the witness’s appearance or speech patterns would be distracting when the tape is viewed. Expert witness depositions are frequently taken by videotape. A video deposition is more interesting to the jury and provides a better way for the jury to examine the witness’s credibility and testimony as opposed to simply having the testimony read into the record.

Using these materials is not a substitute for the attorney’s independent judgment, drafting, and research.

Other Resources

Books

• A Practical Guide to Depositions in Michigan
• Michigan Civil Procedure

Additional Practice Guidance

Governing Rules

Depositions in state proceedings are generally conducted under MCR 2.301, .302, .303, .304, .305, .306. MCR 2.315 provides specific rules for video depositions. an Court Rules also include provisions on the scope of discovery, mandatory initial disclosures, limitations on written discovery and depositions, and special provisions concerning electronically stored information. MCR 2.302(B) provides that parties may only obtain discovery regarding nonprivileged matters that are relevant to a party’s claims or defenses and are “proportional to the needs of the case,” taking into account factors such as whether the burden or expense of discovery outweighs the likely benefit, the complexity of the case, the importance of the issues, and the amount of money involved. Depositions are limited to one day of seven hours. MCR 2.306(A)(3).

Additionally, MCR 2.305(F) provides that “a subpoena issued under this rule may require a party or witness to appear by telephone or by videoconferencing technology. This subrule is one of several amendments made to retain provisions of the administrative orders adopted by the court during the COVID-19 pandemic.

Who May Record the Video Deposition?

Although a professional videographer is frequently used to record video depositions, the court rules do not prohibit the party or the party’s attorney from acting as the video recorder operator. This is becoming increasingly popular as law firms keep their own video equipment for deposition purposes. MCR 2.306(C)(2)(b) indicates that a party as a matter of right may have a deposition recorded by nonsecret mechanical or electronic means, subject to the provisions of MCR 2.315. Any use of the recording in court is within the judge’s discretion. A person making such a record must furnish a duplicate of the record to another party at the other party’s request and expense. A deposition must be taken, however, before a person who is not an attorney for, a relative of, or an employee of a party, or financially interested in the action. MCR 2.304(C). Therefore, it would appear that an attorney can videotape a deposition but cannot prepare the transcript. After the deposition has been completed, the person making the video recording must retain possession of it and securely seal and mark it for identification purposes.

Instructions for the Witness

• Look directly into the camera as if the camera were the jury.
• Do not look at the person or persons asking you the questions—continue to look at the camera.
• Speak clearly and enunciate succinctly. Practice speaking beforehand so that you will notice what your voice sounds like to you when you are speaking too fast or too slowly. Keep your voice speed at an average pace. Do not allow your voice to go too high or too low.
• Do not wear small patterns or checks, since they tend to blur on video. Do not wear all white, since it will most likely get washed out in the background behind you.
• Remember that this is a videotaped deposition that will be shown to the jury. Therefore, do not “lose your cool,” do not fidget, and do not raise your voice. Appear calm and collected throughout the deposition.

Steps to Take When Less Than the Entire Video Deposition Is Used in Court

MCR 2.315(F)(4) indicates that when a video deposition is used in the court proceeding, the court must indicate on the record what portions of the record have been played. The court reporter need not make a record of the statements in the recording. Make sure that the court complies with this provision because it is imperative for the appellate court record. MCR 2.315(H) requires that, on appeal, the recording remains part of the record and is transmitted with it.

It is important that if certain portions of a video deposition are stricken by the court, objections and argument about the admissibility appear on the court record. Questions concerning a trial court’s exclusion of certain portions of testimony will not be preserved for appeal where none of the testimony, objections, or rulings were transcribed and a separate record of the excluded material was not prepared. Warfield v Wyandotte, 117 Mich App 83, 323 NW2d 603 (1982).

Zoom Depositions

Video technologies such as Zoom are increasingly common ways to conduct remote proceedings, including depositions. See Step 3 for best practices on using exhibits via Zoom, and see Step 6 for tips on making sure the questioning goes smoothly. The State Court Administrative Office (SCAO) has put together a comprehensive guide, Using Zoom to Conduct Online Mediation, that includes information also relevant to using Zoom for depositions. Also see the SCAO’s Using Zoom and Virtual Courtroom Resource Center. MCR 2.305(F) provides that “a subpoena issued under this rule may require a party or witness to appear by telephone or by videoconferencing technology.” MCR 2.402 deals with telephonic proceedings, and MCR 2.407 deals with videoconference proceedings. MCR 2.305(F). See also MCR 2.408 concerning the use of videoconferencing technology in civil cases more broadly.