Memo
To:
File
From:
David Noteware, Esq.
Date:
February 19, 2013
Re:
Texas Rules relating to Depositions with Remote Participants
This memorandum addresses the Texas law relating to depositions with remote participants. This
issue has arisen in response to questions relating to the application of NextGen Reporting’s
NextGen’s proprietary videoconferencing technology to depositions occurring in the state. Of
particular focus in this memorandum are issues relating to (i) the frequency with which NextGen’s
approach is conducted, (ii) the security and confidentiality of NextGen’s processes, (iii) the applicable
Texas Rules of Civil Procedure, and (iv) samples of Texas and Federal case law on applicable
topics.
NextGen’s business model offers attorneys remote solutions for managing depositions that the
attorney may choose to use when it is appropriate in the context of a case. In such instances, the
court reporter, the attorneys, representatives from the client and the witness may be located in
different physical locations for a deposition. After the deposition, NextGen provides access to the
transcripts, exhibits and videos in a secure online repository.
It may be useful to know that NextGen was founded by David Noteware, Esq., who served as an
Associate Editor of the Texas Law Review.
Frequency


Since late 2010, NextGen has handled approximately 10,000 depositions using both
traditional methods (i.e., everybody in the same room) and remote methods. Approximately
35% of NextGen’s depositions include at least one remote participant.
Among the NextGen depositions, in no instance has a court prevented the party requesting
that a deposition include a remote element from moving forward in that manner.
Security and Confidentiality


NextGen manages and owns its primary technology infrastructure. NextGen’s team of
employees and contractors have designed, built and managed elements of data security for
Fortune 100 corporations such as Unisys and Citigroup. NextGen retains transcripts, exhibits
and videos on its servers, which are backed up continuously to an offsite storage facility
managed by EvolveIP in Philadelphia. The backup facility is routinely subject to SAS 70
Type II audits and is ISO 27001 certified.
NextGen’s online repository has two components, one for video and one for all other files.
The non-video files are retained on servers managed by SparkNet Technologies of Wayne,
PA. Calls to download non-video files and for word search results are fulfilled by these
 Page 1






servers. Calls to view video files are directed to the non-video server and then redirected
(transparently to the user) to video servers managed by Viddler, a Pennsylvania company.
The only way to access the video repository is through the non-video repository – access
through other URLs is prohibited by rule.
The non-video repository is accessible only through dual layers of password protection and is
subject to military-grade security. Passwords of users are not accessible to any NextGen
personnel and are stored using dual hash techniques.
NextGen’s servers (including the non-video server managed by SparkNet) are maintained
and located in a secure co-location facility managed by EvolveIP in Philadelphia. Access is
limited to authorized internal personnel.
The video streams provided by NextGen utilize 128-bit encryption (unlike Skype and other
free offerings) to ensure that the video remains secure.
NextGen’s infrastructure and processes for creation and maintenance of video create a
solution that is HIPAA compliant and optimally confidential. Each participant in a remote
deposition use a unique usernames and passwords, and can be set per event or per user.
This unique approach to video enables us to maintain HIPAA compliance and protect our
client’s confidentiality.
As a condition of employment, each employee of NextGen must execute a Confidentiality
and Inventions Agreement which states, in relevant part:
o Other than as required in my duties as an employee of NextGen, I will not disclose to
anyone or use either during or after my employment, except with the prior written
consent of NextGen, any trade secret, confidential know-how or confidential business
or technical information of NextGen. The foregoing obligation shall also apply to any
trade secrets or other confidential information of any third party learned by me as a
NextGen employee which NextGen has an obligation to maintain in secrecy. The
obligations of secrecy and non-use of this paragraph shall not apply to any
information that has become publicly available through no fault of my own.
As part of its standard hiring protocol, no NextGen employee may be hired without verbal
communication with at least three prior employers and/or references.
Applicable Rules

Depositions Using Remote Method Specifically Allowed. TRCP Rule 199.1(b) provides
specifically that “A party may take an oral deposition by telephone or other remote electronic
means if the party gives reasonable prior written notice of the intent to do so.”

Notice Requirements: In addition to all the standard rules about noticing depositions, TRCP
Rules 199.1(c) and 199.2(b)(3) provide that in instances where the deposition will utilize
remote electronic means the deposition notice must inform the parties of the details of that
remote electronic means.

Other Remote Participants Allowed if Noticed. The Texas Rules anticipate that persons other
than the parties may attend depositions, either in person or by remote electronic means.
TRCP Rule 199.5(a)(3) states that “If any party intends to have in attendance any persons
other than the witness, parties, spouses of parties, counsel, employees of counsel, and the
officer taking the oral deposition, that party must give reasonable notice to all parties, either in
the notice of deposition or separately, of the identity of the other persons.”
 Page 2

Objections to Details of Deposition. The Texas Rules anticipate that parties may dispute the
time and place for depositions, see TRCP Rule 199.4, but they do not provide a vehicle for
disputing a properly noticed deposition, by remote or traditional means. Notably, they also do
not provide a means to dispute the inclusion of a non-party participant. .
Analysis
The Texas rules grant significant leeway to the noticing party has significant leeway on defining the
means of taking the deposition (Rule 199.1(b)). A noticing party would have every right to utilize all
the advanced tools that NextGen offers for depositions.
In addition, the Texas rules specifically anticipate that a noticing party may want persons to
participate who are neither parties nor counsel. See Rule 199.5(a)(3). This rule is very helpful in the
circumstance whereby an insurance company’s outside counsel, representing an insured in a matter,
wishes to include a representative of the insurance company in a deposition by remote means.
Provided that the noticing attorney provides reasonable notice of the remote person’s attendance to
the counterparties (and otherwise notices the deposition properly), then the Texas rules specifically
allow such person to attend.
The Texas rules do not state that a party must object to a form of deposition before the event occurs
as many other states do, but even so, case law uniformly supports the concept that an objection as to
the form or manner of a deposition is waived if not voiced prior to the event occurring. See, e.g., [add
string cites].
Further, the Texas rules define the topics on which a party may dispute the validity of a deposition
notice, and the means of taking the deposition are omitted from the grounds for a dispute. The
drafters note the particularities of how remote depositions would be handled in several other sections,
so the absence of such an issue in the list of topics that may be disputed would lead to the
conclusion that a party may not dispute the utilization of a remote technology in a deposition (e.g., the
solution offered by NextGen or even a telephonic solution) or the attendance of a non-party attendee.
Although the federal rule speaks in terms of stipulations among the parties to enable remote
depositions, federal courts are generally amenable to ordering videoconference depositions under
Fed. R. Civ. P. 30(b)(7) where one party resists. Bywaters v. Bywaters, 123 F.R.D. 175, 177 (E.D.
Pa. 1988). Some federal courts have imposed stricter requirements on plaintiffs residing outside the
district where the action is held, but this position seems to be softening. See, e.g., Ryan v. Bucksport
Reg’l Health, 2013 U.S. Dist. LEXIS 81 (Jan. 2, 2013) (plaintiff successfully argued that her former
employer could not compel her to return to Maine to be deposed in her employment discrimination
suit). The majority of federal courts follow the standard set forth in Jahr v. IU International, 109
F.R.D. 429 (M.D. N.C. 1986), that the party seeking a remote deposition need only make a limited
showing of a legitimate reason for the request. Conservation of financial resources is a legitimate
reason to seek a videoconference deposition. Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D.
Kan. 1996); In re Central Gulf Lines and Waterman Steamship Corp., No. 97-3829, 1999 US Dist.
Lexis 19070 (E.D. La. Dec. 3, 1999).
Interestingly, TRCP Rule 199.1(c) does not restrict the means by which a deposition may be
recorded non-stenographically, effectively authorizing recording of depositions for later transcription.
This rule is not especially common in the United States and poses a far more radical change in
process than the solutions encompassed in NextGen’s approach. In the situation authorized by this
 Page 3
rule, a reporter would not be available in real time to conduct “read backs” or provide expedited
copies of the transcript.
Finally, it is worth noting that Texas does not appear to designate exactly where a deposition occurs
when the participants are located in different locations. As such, it is likely wise to assume that a
Texas court would apply the Federal rule designating the location of the witness as the location of the
deposition, and, by connection, the location of the jurisdiction with law controlling the rules of the
deposition.
 Page 4