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One of the blogposts that generated a lot of “Thanks, I needed that” responses from our readership was our 2022 post, “Remote Depositions in MDLs.”  For that reason, we have updated it by adding references to additional MDL orders on that subject that have been entered since early 2022.  We pay particular attention to MDL orders because, due to their stakes, every procedural jot and tittle is gone over with a fine-toothed comb.  The “litigate everything” mentality in MDLs produces the most comprehensive consideration of issues that arise in remote depositions generally.  We asked one of our crack legal assistants to look for additional MDL orders during this time frame to see what MDL transferee judges – advised by the parties – have had to say most recently about the conduct of remote deposition.

We start with the Manual for Complex Litigation, which unfortunately has not been updated since 2004.  It contains only an elementary discussion of remote depositions:

Telephonic or videoconferenced depositions can reduce travel costs.  Federal Rule of Civil Procedure 30(b)(7) allows the court to order or the parties to stipulate to taking a deposition “by telephone or other remote electronic means”. . . .  Through use of . . . videoconference, distant witnesses may be examined by counsel from counsel’s offices, with the court reporter located with the witness or, by stipulation, at one of the attorneys’ offices. . . .  Remote depositions are most often used for relatively brief examinations that do not involve numerous documents, but may also be used to reduce travel costs. . . .  To ensure that [witnesses] are not coached, ground rules should specify who may be present with the [witness] during the examination.

Manual for Complex Litigation (4th), at 86-87.  This commentary does recognize two of the issues we addressed in our prior post – difficulties with use of documents, and the need to prevent surreptitious coaching of witnesses being deposed.  The Manual also discusses general issues concerning the presentation of video depositions of any sort at trial.  See Id. at 144-45.  Also indicative of the trend towards taking depositions remotely, Moore’s Federal Practice was revised in 2023 to state that “leave to take depositions by remote electronic means should be liberally granted.”  7 Moore’s Federal Practice − Civil §30.24 (2023).

We also point out, but do not attempt to resolve, the most significant point of contention concerning remote depositions, which so far has involved trial depositions only − whether they can be used to make the 100-mile radius requirement of Fed. R. Civ. P. 45(c) disappear.  The only appellate court to weigh in, the Ninth Circuit in In re Kirkland, 75 F.4th 1030 (9th Cir. 2023), which we previously discussed here, held that the 100-mile limit stands unless and until Rule 45(c) is amended, and therefore remote trial depositions can only occur by the consent of both sides:  “[A] person cannot be required to attend a trial or hearing that is located more than 100 miles” away.  Id. at 1042.

[W]e conclude that despite changes in technology and professional norms, the rule governing the court’s subpoena power has not changed and does not except remote appearances from the geographical limitations on the power to compel a witness to appear and testify at trial.

Id. at 1051-52 (quashing trial subpoenaes that violated 100-radius requirement).

Most courts agree with Kirkland that remote “attendance” is still attendance subject to Rule 45(c)’s limitations. 

If this provision is construed to mean that a person residing anywhere (at least anywhere within the United States) can be compelled to provide testimony by videoconference from a spot (with videoconferencing capabilities) within 100 miles of their home, that would mean virtually everyone in the United States could be compelled to ‘attend’ trial in this manner.

Singh v. Vanderbilt University Medical Center, 2021 WL 3710442, at *3 (M.D. Tenn. Aug. 19, 2021).  See also Coblin v. Depuy Orthopaedics, Inc., 2024 WL 1357571, at *1 (E.D. Ky. March 29, 2024); Bioconvergence LLC v. Attariwala, 2023 WL 4494020, at *2 (S.D. Ind. June 29, 2023); Rochester Drug Cooperative, Inc. v. Campanelli, 2023 WL 2945879, at *2 (S.D.N.Y. April 14, 2023); Hightower v. Ingerman Management Co., 2022 WL 19266260, at *3 n.2 (D.N.J. May 26, 2022); Moreno v. Specialized Bicycle Components, Inc., 2022 WL 1211582, at *2 (D. Colo. April 25, 2022); Orbital Engineering, Inc. v. Buchko, 2022 WL 170043, at *2 (W.D. Pa. Jan. 19, 2022); Broumand v. Joseph, 522 F. Supp. 3d 8, 10 (S.D.N.Y. 2021); Official Comm. of Unsecured Creditors v. Calpers Corp. Partners LLC, 2021 WL 3081880, at *3 (D. Me. July 20, 2021); In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litigation, 2021 WL 2822535, at *3-4 (D. Kan. July 7, 2021); Black Card LLC v. Visa USA Inc., 2020 WL 9812009, at *3 (D. Wyo. Dec. 2, 2020); Lin v. Horan Capital Management LLC, 2014 WL 3974585, at *23 (S.D.N.Y. Aug. 13, 2014); Roundtree v. Chase Bank USA, N.A., 2014 WL 2480259, at *2 (W.D. Wash. June 3, 2014); Lea v. Wyeth LLC, 2011 WL 13195950, at *1 (E.D. Tex. Nov. 22, 2011).

However, the issue is hardly settled.  E.g., In re 3M Combat Arms Earplug Products Liability Litigation, 2021 WL 2605957, at *4 (N.D. Fla. May 28, 2021) (place of trial deposition controls, even if the trial itself is more than 100 miles distant); In re Xarelto (Rivaroxaban) Products Liability Litigation, 2017 WL 2311719, at *4 (E.D. La. May 26, 2017) (same).  Thus, this expansive view of remote trial depositions appears to be another aspect of the general disrespect for the Federal Rules of Civil Procedure that we find in the MDL context.

Nonetheless, numerous MDLs have entered orders authorizing remote depositions during or after the COVID-19 pandemic.  Here are the remote deposition protocols we have reviewed for this updated blogpost:

  • In re Gardasil Products Liability Litigation, MDL No. 3036, Deposition Protocol Order (W.D.N.C. Oct. 31, 2023)
  • In re SoClean, Inc., Marketing, Sales Practices, & Products Liability Litigation, MDL No. 302, Amended Deposition Protocol Order (W.D. Pa. July 19, 1923) (also used in CPAP MDL, No. 3024)
  • In re McKinsey & Co., Inc. National Prescription Opiate Consultant Litigation, MDL No. 2996, Stipulated Deposition Protocol (N.D. Cal. April 3, 2023)
  • In re Mednax Services, Inc., Customer Data Security Breach Litigation, MDL No. 2994, Stipulated Deposition Protocol Order (S.D. Fla. Feb. 5, 2023)
  • In re Seresto Flea & Tick Collar Marketing, Sales Practices & Products Liability Litigation, MDL No. 3009, Discovery Procedures (N.D. Ill. March 25, 2022)
  • In re Google Play Store Antitrust Litigation, MDL No. 2981, Stipulated Order (N.D. Cal. Dec. 20, 2021)
  • In re Blackbaud, Inc., Customer Data Security Breach Litigation, MDL No. 2972, Stipulated Order (D.S.C. March 10, 2021).
  • In re Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724, PTO No. 159 (E.D. Pa. Feb. 12, 2021).
  • In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Devices Liability Litigation, MDL No. 2846, CMO 30 (S.D. Ohio Dec. 14, 2020).
  • In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, MDL No. 2875, CMO 20 (D.N.J. Nov. 17, 2020).
  • In re Onglyza (Saxagliptin) & Kombiglyze XR (Saxagliptin & Metformin) Products Liability Litigation, MDL No. 2809, Order Regarding Remotely Conducted Depositions (E.D. Ky. Oct. 6, 2020).
  • In re Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924, PTO 48 (S.D. Fla. Oct. 5, 2020).
  • In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, MDL No. 2775, CMO 17 (D. Md. June 9, 2020) (“BHR”).
  • Huntington/Cabell v. ABDC, MDL No. 2804 (remanded), Remote Deposition Protocol (S.D.W. Va. June 6, 2020) (“H/C”).
  • In re Proton-Pump Inhibitor Products Liability Litigation, MDL No. 2789, CMO 40 (D.N.J. May 20, 2020) (“PPI”).

We particularly wish to thank Debbie Ford, the Reed Smith legal assistant who runs the firm’s MDL pretrial order electronic library.

Together, these MDL-related remote deposition protocols cover just about every conceivable aspect of the conduct of remote depositions.  In the rest of this post, we have tried to organize the various, and occasionally conflicting, provisions of these fifteen MDL-related remote deposition orders into something that we, and other lawyers contemplating remote depositions, could use as a checklist for creating similar protocols in future litigation.

General

“All depositions . . . shall be conducted via videoconference, unless all parties agree to conduct the deposition in person.”  Valsartan Testimony ¶1; accord Blackbaud ¶2; Davol ¶2.

“Hybrid” remote depositions – where some participants are physically present, and others attend via Zoom or similar teleconferencers, are permissible.  Blackbaud ¶37; Generic Pharmaceuticals Pricing ¶2; Davol ¶1; Zantac at p.1.  Contra Google Play ¶58 (forbidding anyone from being in the same room with the witness during remote deposition; anyone entering must be identified; deposition paused until witness is again alone).

Objections to conducting a deposition remotely must be made in writing a set time in advance of the deposition and must be “supported by clear and convincing evidence of unfair prejudice or harm suffered by the movant.”  Valsartan Testimony ¶3.  Cf. Blackbaud ¶14 (objection process does not require clear and convincing evidence); BHR §I(L); Seresto ¶10(j)(i) (objection within five days, no remote deposition until objection is resolved).

Either the witness or any counsel otherwise entitled to attend the deposition can require the deposition to occur remotely.  Generic Pharmaceuticals Pricing, ¶1; accord Blackbaud ¶12.

Some protocols provide that “[a] deposition that is noticed to take place remotely without advance agreement that the witness is available and able to proceed remotely at the noticed time shall be deemed void and unenforceable ab initio, and no motion shall be necessary to quash such a notice.”  H/C ¶1(B), accord Zantac ¶1; PPI ¶1.  Conversely, Blackbaud provides that “all depositions in this action shall be taken via remote videoconference . . . absent agreement, objection or court order to the contrary.”  Blackbaud ¶2.

Absent some other agreement the noticing party “shall bear the costs” for the host technology, the court reporter, and the videographer.  Blackbaud ¶22, accord Mednax ¶16.  Each party pays for “its own real-time feed, deposition transcript (rough and final), and video copy of the deposition.”  Id.  Accord Google Play ¶72 (generally all parties “share” the costs of remote depositions).  See Gardasil ¶7 (noticing party “shall bear the initial expense” and “make arrangements to allow for remote deposition attendance,” but “parties shall pay for their own copies of transcripts and videotapes”).

Some MDL orders impose responsibility for ensuring the remote deposition’s accessibility to all participants on the noticing party.  Generic Pharmaceuticals Pricing ¶2; H/C ¶1(F)(1).  Others place this responsibility on the assigned court reporter or videographer.  Onglyza, ¶2.  With remote depositions now common-place, the trend is for “each participant” to “shall be responsible for acquiring, maintaining, and utilizing computer, audio, and video equipment necessary to conduct the Remote Deposition.”  Google Play ¶54.

The notice of deposition shall specify that it is remote and must identify the host technology, and a contact person at the host technology service.  SoClean ¶3(d); McKinsey ¶3(d); Gardasil ¶B(7). H/C ¶2(C); accord Seresto ¶10(j)(iii); Blackbaud ¶13; BHR §II(B).

“All remote witness deposition notices shall advise the planned location of the witness (city and state shall be sufficient identification for this purpose, with due regard for maintaining the privacy associated with home addresses), the court reporter, and the witnesses’ counsel who will attend remotely.”  Davol ¶3; accord PPI ¶4 (also including locations of court reporter and videographer); McKinsey ¶3(b); SoClean ¶3(g); Mednax ¶27.

All parties to the deposition must be informed of:  (1) the host technology to be used; (2) the “minimum technical specifications required . . . including equipment, software, and internet bandwidth requirements”; (3) any “additional software”; and (4) a contact person(s) “who will support the deposition and who can answer questions about technical requirements.”  H/C ¶1(F)(1).  Accord Davol ¶6 (notice to contain “detailed instructions”); McKinsey ¶3(d) (same); Zantac ¶10; PPI ¶5; BHR §II(B).  Cf. Blackbaud ¶¶15-16, 25 (establishing minimum requirements for host technology and notice); Gardasil ¶B(7) (notice must “contain a general description of how counsel for the Noticing Party attending remotely may access the remote connection being utilized”; specific sign-on details one week in advance of deposition).

Each deposition participant is responsible for obtaining and knowing how to use the necessary equipment to conduct the deposition.  Google Play ¶54.  Accord Gardasil ¶B(10); Seresto ¶10(j)(vi).

The noticing party must provide the court reporter with the MDL remote deposition protocol prior to the deposition.  Gardasil ¶B(9); Zantac ¶7; BHR §II(C).

Some protocols require a professional videographer to record all videotaped remote depositions.  Gardasil ¶(B)(2); Seresto ¶10(j)(ix); Generic Pharmaceuticals Pricing ¶6; Blackbaud ¶20; BHR §I(N).  Others make separate video recording optional with parties making “best efforts” to “accommodate” such requests.  Valsartan Recording ¶2.  Others forbid separate recordings altogether.  Gardasil ¶B(12).

The videographer shall supply a “certified recording” containing “only time on the record.”  H/C ¶3(G).  See Seresto ¶10(j)(ix) (recording shall occur “only when the deposition is on the record”).

The court reporter and videographer are “expected” to be “physically present in the same room as the witness.”  Gardasil ¶(B)(2-3).  Cf. Mednax ¶12 (court reporter and host technology representative may attend in person if others are).

Both a court reporter and a videographer shall participate in remote depositions, and “the deposition may not otherwise be recorded electronically.”  Zantac ¶4; see Id. ¶24 (“the deposition may not otherwise be recorded electronically without the consent of the Parties”); accord Davol ¶11; PPI ¶13; BHR §I(N).

Some orders designate a particular videoconferencing service.  Generic Pharmaceuticals Pricing, at p.1; Valsartan Communication ¶2.

Others specify only “use of a single court reporting service with a videoconferencing platform, which shall be used for all Remote Depositions.”  BHR §I(N).

The identity of the host technology, once chosen, cannot be changed except through a formal meet and confer process.  Davol ¶6 n.1.

The noticing party must arrange for technical support/training to be available to all participants through the host technology service.  SoClean ¶3(f); Blackbaud ¶23; H/C ¶3(D).

The noticing party must, upon request, make available a “real-time transcript.”  Zantac, ¶14; accord Blackbaud ¶24; H/C ¶3(E).  Cf. Blackbaud ¶23 (each participant pays for its own real-time transcript).

Either the court reporter or the videoconferencing platform shall designate ahead of time an “Operator” whose job is to assist with any technical issues that occur during the deposition.  Google Play ¶52.

Technical difficulties do not waive any objections.  Generic Pharmaceuticals Pricing ¶12; accord McKinsey ¶3(i); Gardasil ¶C(4)(n); Zantac ¶33; PPI ¶17.  See Seresto ¶10(j)(xi) (if unable to object immediately, affected counsel “should attempt to assert the objection before the deposition ends, in which case it will be preserved as if it had been timely presented”).

Delays or interruptions due to technical difficulties do not count against time limits.  Gardasil ¶C(4)(n); Google Play ¶64(c); SoClean ¶3(k); McKinsey ¶3(i); Mednax ¶39; Seresto ¶10(j)(xv); Blackbaud ¶27; Generic Pharmaceuticals Pricing ¶12; H/C ¶3(F); BHR §IV(A).  That remote depositions may take longer may require the parties “to exceed time limits on deposition days,” necessitating “good faith efforts to make reasonable accommodations to allow all Parties adequate additional time.”  Zantac, ¶36.

Any delay due to technical difficulties of more than an hour requires either a suspension of the deposition or agreement to a telephonic only deposition.  Mednax ¶39; McKinsey ¶3(i).  Cf. Seresto ¶10(j)(xv) (maximum 30 minute limit before being required to consider other arrangements).

A remote deposition may be rescheduled due to prolonged technical difficulties.  Gardasil ¶C(4)(n); SoClean ¶3(k); Mednax ¶39; Blackbaud ¶41; Generic Pharmaceuticals Pricing ¶12; Zantac ¶33; BHR §IV(A); PPI ¶17.

To detect technical difficulties, the host technology must “automatically alert the court reporter if any Participant is disconnected.”  H/C ¶3(F).  Alternatively, a disconnected participant “shall promptly notify the other participants using the alternative contact methods arranged prior to the deposition.”  Seresto ¶10(j)(xv).

The deposition is immediately halted until the issue causing the disconnection is resolved.  Gardasil ¶C(4)(n); Seresto ¶10(j)(xv); H/C ¶3(F); Google Play ¶¶64(a) (deemed off the record), 64(b) (deposition suspended).

“If a technical issue prevents any Participant from being able to see or hear one or more of the other Participants clearly or to access published exhibits either electronically or in hard copy, the Court Reporter shall, at the request of the Participant encountering such technical issue, suspend the Remote Deposition after any pending question is answered until the technical issue is resolved.”  Google Play ¶64(c); accord Mednax ¶39.

“The fact of such technical difficulties, including malfunctions in visual or audio equipment, will be noted on the record as soon as the parties learn of their existence.”  Mednax ¶39.

Inadvertent disclosure of privileged information “due to technical disruption” or “captured by a videoconferencing or other recording device” does not waive any privilege. Gardasil ¶C(5);  H/C ¶3(H); accord Zantac ¶30.

A “misplaced attendee” in a “breakout room” does not waive any privilege.  Zantac ¶32.

If technical difficulties prevent a timely objection, the objection may be raised, by “sworn affidavit,” within “within five business days of receipt of the final transcript.”  H/C ¶3(I).

Procedures for remote depositions of experts may vary.  Zantac ¶2.

A consenting non-party may be deposed remotely subject to the same protocol in place for party witnesses.  Generic Pharmaceuticals Pricing ¶15.

A remote deposition conducted under the protocols “may be admitted at trial with the same effect and pursuant to the same evidentiary rules as one recorded in-person.”  Google Play ¶71; Zantac ¶34; accord Mednax ¶17; Blackbaud ¶39; Davol ¶11; Valsartan ¶¶(R)(3), Recording 1.  Cf. PPI ¶13 (a deposition’s remote status “shall not, by itself, be a sufficient basis” for not admitting it “at trial with the same effect as a deposition video that was recorded in-person”).

Redeposition not allowed “absent a showing of good cause and obtaining leave of Court or agreement of the Parties.”  Zantac ¶35; accord PPI ¶18.

“Alterations” of the remote deposition video recording may only be made to comply with trial deposition designations, and with full disclosure.  Only cuts may be made, with “no color or other modification to the images.”  Davol ¶11.

Security

The host technology must ensure a secure and confidential connection, including keeping track at all times of everyone attending.  Generic Pharmaceuticals Pricing ¶10; accord Zantac ¶13.  Where a protective order is in effect, only persons governed by the order may participate in remote depositions using protected documents.  Onglyza, ¶3; H/C ¶1(E).

Where a confidentiality order is in effect, the witness, court reporter and agency, host technology, and videographer must all agree in writing to be bound by it.  Google Play ¶70.

A set period (a day or two) before a remote deposition, the host technology service must be informed of the identities of all participants. Gardasil ¶B(12); Mednax ¶13; Seresto ¶10(j)(iv) (7 days); Blackbaud ¶17; Davol ¶5; Valsartan Communication ¶2(a); Zantac ¶12; H/C ¶3(B).

“The noticing party and/or its [host technology] must ensure that only registered Participants and Attendees are sent a link to join the deposition.”  Zantac ¶12.

Some orders are more rigorous than others in detailing security procedures:

  • Gardasil ¶B(12) (“security measures include . . . a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend”; “disabling the ‘record’ feature . . . for the witness and attending attorneys”; “ensur[ing] that only registered participants and attendees are sent a link to join”; “no link should be posted on a website or otherwise made publicly available”; “[o]nly the videographer or court reporting service shall capture video and/or audio of the deposition . . . or take any pictures or screen captures”).
  • Mednax ¶18 (“security measures include . . . a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend”; and “disabling the ‘record’ feature for the witness and all Deposition Participants”).
  • Seresto ¶10(j)(iv-v, ix) (must use “a secure video deposition platform, hosted by a court reporting service with appropriate technological capabilities”; use “secure password or a virtual waiting room that allows the court reporter to admit only authorized individuals”; “[h]osting and co-hosting privileges shall not be given to any participant other than personnel of the court reporting service”; “the reporting service shall disable any ‘record’ function”).
  • Blackbaud ¶23 (“security measures must include a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition, the ability to disable the ‘record’ feature in the [host technology], and end-to-end encryption.  The [host technology] must also offer training prior to the deposition to the [witness] and attorneys”).
  • Davol ¶7 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and “[s]election of a national court reporting service with an established” host technology service).all
  • Valsartan Communication ¶2(c) (“enable the waiting room feature . . . to ensure each participant is only admitted after their identities have been confirmed”).
  • Onglyza ¶1 (the host technology “must be secured by password or comparable restriction”).
  • Zantac ¶11 (host technology “must have implemented adequate security measures to ensure the confidentiality of the Remote Deposition”).
  • H/C ¶1(E) (requiring “a secure [host technology] that, at a minimum, provides verifiable end-to-end encryption, requires unique user-identity authentication, and employs a [host technology]-moderated ‘green room’ or ‘lobby’ feature”).
  • PPI ¶6 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and sharing electronic exhibits “only . . . vis a hyperlink . . . with the download function disabled”).
  • Google Play ¶63, No participant shall allow any non-participant access to the remote deposition platform while the deposition is being conducted,

“All Participants who connect to the [host technology] must connect, through a private, password-protected network.  Connection through a public Wi-Fi network is not permitted.”  H/C ¶1(E)(1).  Accord Google Play ¶53; Mednax ¶25 (connection solely “through a private, password-protected network”).

The noticing party must make available “technical and other information concerning the security of the proposed” host technology at least ten days before the deposition.  H/C ¶1(E)(2).

All devices to be used to participate in the remote deposition “must be secured with appropriate firewalls, VPN, or similar security infrastructure.”  H/C ¶1(F)(2).

No link to a remote deposition should be “should be posted on a website or otherwise made publicly available.”  H/C ¶3(C); accord Mednax ¶24; Zantac ¶13; Gardasil ¶B(12).

“The deposition conference password shall be provided in a separate e-mail communication from the e-mail communication providing the platform link.”  Id.; accord Mednax ¶24.

Confidential documents “shall be protected in the same manner as in an in-person deposition.”  BHR §IV(F).

“[T]o prevent confidential documents from being downloaded . . ., electronic exhibits may only be shared . . . through the Remote Deposition Technology via a hyperlink to file sharing software . . . with the download function disabled.”  .”  Gardasil ¶b(15)(iii);  Zantac ¶11; accord Davol ¶7; PPI ¶6.

Nobody can attend a remote deposition “who is not identified on the record.”  BHR §I(N); H/C ¶6(C).  All attendees “must be identified on the record.”  Gardasil ¶¶B(5) B(11); Google Play ¶59; Mednax ¶8.

After the remote deposition is completed, the participants “shall store the exhibits in a secure location that protects confidentiality.”  H/C ¶5(D).

During the deposition all participants “shall enable ‘do not disturb’ settings for applications not in use.”  Gardasil ¶B(14).

The Witness

Some protocols require the witness’ physical location.  SoClean ¶3(g); Mednax ¶27.  Others do not, limiting disclosure to the witness’ name and email address(es).  Google Play ¶56.

The only video feed to be recorded is that of the witness.  Generic Pharmaceuticals Pricing ¶6; BHR §I(N); H/C ¶3(G).  See Onglyza, ¶3 (requiring recording of witness at all times from the waist up).

Regardless of anti-coaching measures, there “shall also be a camera showing the deponent individually.”  Gardasil ¶B(13).

The witness is to be questioned in “a quiet, well-lit, indoor location, while seated in front of a neutral background, and facing the camera.”  SoClean ¶3(g); McKinsey ¶3(d); Mednax ¶27; Seresto ¶10(j)(xiii); Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶28; Davol ¶3; Valsartan Recording ¶2(a-b); Zantac ¶19; H/C ¶1(D); PPI ¶10.  Cf. BHR §IV(E) (participation shall be “in a space free of distractions and noise to the extent possible”).  One recent protocol prohibits use of “virtual backgrounds.”  Gardasil ¶C(4)(k).  The witness should have “sufficient lighting from the front to avoid the deponent appearing in shadow.”  Seresto ¶10(j)(xiii).

During the deposition, no other applications should be running on the witness’ computer.  Generic Pharmaceuticals Pricing ¶6; accord Zantac ¶20.  “To confirm that no prohibited applications are open or running,” the host technology may require “the witness to share the screen of the witness’s electronic device.”  Zantac ¶20.

A witness’ “special circumstances” should be accommodated without any “unreasonable burden” on the witness or others in the “household.”  H/C ¶1(H); accord Zantac ¶17.

“All Remote Depositions shall be conducted during normal business hours within the witness’s local time zone.”  Gardasil ¶4, Mednax ¶26; Zantac ¶17; accord H/C ¶1(H); PPI ¶8.

During the deposition, the witness “is to have their device positioned so his or her camera shows them from the waist up and it must stay that way.”  Onglyza ¶7; accord Valsartan Recording ¶2(c).

A majority of MDL orders allow remotely deposed witness to have their attorneys physically present, subject to some limitations:

  • Gardasil ¶(B)(4) (if defending counsel is “appearing in person,” noticing counsel may “send up to two representatives,” who must be of record, “to the deposition” as observers).
  • SoClean ¶3(a); McKinsey ¶3(a) (“If the witnesses’ counsel or any Parties’ counsel is physically located in the room or facility where the witness is located, then the noticing counsel has the right to be physically located in the room or facility where the witness is located.”).
  • Mednax ¶11 (“If any individual(s) will be present in person with the witness during a Remote Deposition, other counsel of record is also entitled, but not required, to attend the Remote Deposition in person.”).
  • Blackbaud ¶37 (if “counsel for the [witness] . . . is present at the same location as the [witness] . . . the court reporter and a videographer shall be in the same location”).
  • Generic Pharmaceuticals Pricing ¶¶1, 14 (“Nothing . . . shall be construed to preclude any witness and his or her attorney from appearing at the same location for any deposition;”  a technician may also be physically present).
  • Davol ¶3 (if counsel defending the witness is physically present, the side taking the deposition “shall be permitted the same number of participants and/or attendees at the deposition location with the witness”).
  • Valsartan ¶(R)(4) (“Nothing in this Order prevents counsel for a witness from being present in-person to represent that witness.”).
  • Zantac ¶21 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a Remote Deposition, at the sole discretion of the witness.”).
  • BHR §I(M) (“The Deposing Counsel or the Defending Counsel may attend any Remote Deposition in-person, but only with the consent of the Witness”).
  • H/C ¶1(C) (“the noticing party’s choice to participate in a deposition remotely shall not be reason to prevent the defending counsel from defending the deposition in person”).
  • PPI ¶10 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a remote testimony, at the sole discretion of the witness.”).
  • But see Seresto ¶10(j)(ii) (“All remote depositions shall be conducted with all participants in separate locations, including counsel representing the deponent”; if defending counsel is present, then everyone else can be, too).
  • But see Google Play ¶58 (forbidding anyone from being in the same room with the witness during remote deposition; anyone entering must be identified; deposition paused until witness is again alone).
  • But see Onglyza, ¶6 (“The [witness] and all attorneys must be in separate physical locations and on separate devices”).

Counsel defending the witness shall notify the noticing party at least a week before the deposition whether counsel will be attending the client’s deposition in person or remotely, and must identify anyone else who will be physically present.  Zantac ¶25; accord see Seresto ¶10(j)(ii) (five days notice); Davol ¶4 (two weeks notice); PPI ¶14 (notify “in advance”); BHR §I(M).

A physically attending defending attorney becomes “responsible” for ensuring that the witness remains on camera.  Generic Pharmaceuticals Pricing ¶6.

“Defending lawyers and the witness shall spend whatever time is necessary in advance of the deposition to ensure that the witness is fully fluent in the use of the technology.”  Davol ¶13.  All witness technological capabilities shall be assessed and training provided if necessary.  Google Play ¶54; Mednax ¶20.  See Mednax ¶22 (imposing the obligation to ensure connectivity on the witness and defending counsel); Seresto ¶10(j)(vi) (same).

The “questioning attorney” is entitled to “have a representative present at the [witness]’s location” for the purpose of handling hard copy exhibits.  Valsartan Exhibits ¶1.  Cf. BHR §I(O) (deposing counsel may have a “technical specialist and/or deposition “concierge” or other assistant” present at counsel’s expense “to assist with technology issues and/or presentation or use of exhibits”).

Remote witnesses must have an “available internet connection” that is “a Broadband connection (cable or satellite) of at least 10 Mbps or better.”  H/C ¶1(F)(1); accord Blackbaud ¶19; Davol ¶6; Zantac ¶15.

No later than two weeks before a remote deposition, the witness “shall confirm” possession of a computer and internet service meeting specified requirements for conducting the deposition.  Generic Pharmaceuticals Pricing ¶8.

Should the witness lack the requisite technology, most protocols impose on the party noticing the deposition to “arrange to loan or otherwise provide such hardware to the witness at least 48 hours before the deposition.”  Id.; accord Davol ¶6; Zantac ¶16; BHR §III(A); H/C ¶1(F)(2); PPI ¶7.  Cf. Davol ¶13 (examining counsel is to make the remote host technology “available to the witness and his/her attorney and staff, well in advance of the scheduled depositions, to help explain and facilitate”).

Blackbaud uniquely places the burden of furnishing necessary technology on the party defending the deposition, where the witness is represented.  Blackbaud ¶19 (“The Defending Party shall ensure that the Witness has access to technology that meets the minimum standards required.”).  If a witness is unrepresented, the noticing party is responsible “provide sufficient technology to the [witness] for use in the deposition.”  Blackbaud ¶26.

The noticing party shall arrange a test prior to each remote deposition to ensure that the technology works.  SoClean ¶3(e); Generic Pharmaceuticals Pricing ¶9; Davol ¶¶6, 13; Zantac ¶16; BHR §III(B); H/C ¶1(G)(2); PPI ¶7.

If the witness has insufficient connectivity, “the noticing party, through the court reporter, shall send the witness a portable Wi-Fi hotspot for use at the deposition.”  Davol ¶¶6, 13 (at noticing counsel’s expense).  If the witness “does not have a webcam equipped tablet, desktop or laptop computer that can be used during the deposition,” the noticing party must “provide” a “tablet” with the necessary capability to conduct the deposition.  SoClean ¶3(e).

If the witness is to produce documents, counsel “shall work cooperatively with the Witness in advance of the Remote Deposition to obtain copies of such documents and to ensure that all Participating Counsel and the Court Reporter are provided with hard or electronic copies of the documents at least three business days prior to the Remote Deposition.”  BHR §III(E).

Prevention of Witness Coaching

Where the witness’ counsel is physically present, counsel must be visible “so that all Participants can see and hear the counsel for the witness or otherwise maintain a camera view showing both the witness and counsel (or any other persons assisting in the deposition, such as a paralegal or legal assistant).”  Zantac ¶22; accord Gardasil ¶B(13); Mednax ¶16; Generic Pharmaceuticals Pricing ¶6; H/C ¶3(A); PPI ¶11.  That separate feed is not preserved once the deposition concludes.  Generic Pharmaceuticals Pricing ¶6; H/C ¶6(B).

No unrecorded communications – physical or electronic − with witnesses during depositions are permitted.  SoClean ¶3(i); McKinsey ¶3(g); Mednax ¶38; Seresto ¶10(j)(xvi); Blackbaud ¶40; Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Valsartan Communication ¶2(d); Onglyza, ¶9; Zantac ¶31; BHR §IV(E); H/C ¶6(A); PPI ¶16.  Cf. Google Play ¶66 (instruction of witness to this effect).

“[U]nless instructed,” no witness may go “on mute or turn off their video camera when the Remote Deposition is on the record.”  Mednax ¶35; accord Seresto ¶10(j)(xiii).

“The Witness, absent a special need, will not have access to or use of the Realtime feed from the Court Reporter at any time.”  Google Play ¶67.

Another approach also requires anyone in the room with the witness while the deposition is on record to wear, or be heard by, a separately operating microphone in the room.  Gardasil ¶B(14).

“No counsel shall conduct a private communication with any [witness] while a question is pending, except for the purpose of determining whether a privilege should be asserted.”  Blackbaud ¶31.  No in-deposition communications with the witness can occur except through the host technology.  Google Play ¶65 (exception for host or videographer troubleshooting technical problems).

“No counsel, present live or remotely, with a witness shall engage in any improper signaling or non-verbal communication designed to influence an answer of a witness.”  Davol ¶12 n.2, accord SoClean ¶3(i); McKinsey ¶3(g).

A witness may confer with counsel during breaks to the same extent permitted during in-person depositions.  Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Onglyza, ¶9; Zantac ¶31; BHR §IV(C); H/C ¶6(A)(2); PPI ¶16.

All private “chat” functions are disabled.  Mednax ¶21; Blackbaud ¶21; Generic Pharmaceuticals Pricing ¶10; Valsartan Communication ¶2(d); Onglyza, ¶4; BHR §I(N); H/C ¶6(A)(1); Google Play ¶55.

“[T]he witness shall not, without informing the noticing party, consult any outside sources of information other than the exhibits presented to the witness to obtain information in connection with his or her testimony.”  Generic Pharmaceuticals Pricing ¶14.

“The [witness] will confirm that he does not have any other devices near him and that his cell phone is not within reach or visible to him.”  Onglyza, ¶10.

Remote Deposition Procedure

By a set number of days prior to the deposition the witness’ attorney must identify him/herself and provide email contact information to the noticing attorney, and conversely the noticing attorney must provide the defending attorney all information necessary to access the technology platform.  Google Play ¶¶56-57.  Cf. SoClean ¶3(d) (noticing party” must provide the witness and all other attendees with detailed instructions regarding how to participate in the Videoconference Deposition at least three business days before the deposition”).

Only attorneys of record of members of their law-firm staff may attend remote depositions.  Gardasil ¶B(5).

Notice must be given to the host technology service and to all participants of any last-minute changes in any party’s designated attendee.  Blackbaud ¶17; Zantac ¶12; H/C ¶3(B).

All participants must log in.  Blackbaud ¶30.

“At the time of the deposition, the witness, all attorneys, and all support staff shall advise the court reporter of his or her physical location.”  Zantac ¶18; accord Davol ¶5.

“At the beginning of each deposition, . . . the videographer shall begin the deposition with an on-the-record statement that includes:  (i) the officer’s name and company affiliation; (ii) the date, time, and place of the deposition; (iii) the [witness’] name; (iv) the officer’s administration of the oath or affirmation to the [witness]; (v) the examining attorney for the deposition; and (vi) a statement on the record that all persons attending the deposition will be identified in the final stenographic transcript.”  Zantac ¶8; accord Blackbaud ¶40; Valsartan Recording ¶¶3-4.

Remote witnesses may be sworn remotely by the court reporter.  Gardasil ¶C(4)(b); SoClean ¶3(b) (as long as state law allows); McKinsey ¶3(b) (as long as state law allows);  Mednax ¶29; Seresto ¶10(j)(viii); Blackbaud ¶¶35-36; Generic Pharmaceuticals Pricing ¶5; Davol ¶2; Valsartan Testimony ¶2; Onglyza ¶5; Zantac ¶¶3, 6; BHR §I(K); H/C ¶4; PPI ¶3; Google Play ¶51.

All attendees “shall enable “do not disturb” settings for applications not in use, including but not limited to Skype, instant messaging, and/or e-mail notifications.”  SoClean ¶3(g); McKinsey ¶3(e); Mednax ¶27; Seresto ¶10(j)(viii); Zantac ¶23; accord Blackbaud ¶29; Davol ¶6; PPI ¶12.

Each party “must designate one attorney to be the primary speaker during the Remote Deposition.”  Mednax ¶30.

“Attorneys questioning a witness shall always be visible to the witness and should endeavor to appear on video visible to the other participants while asking questions.”  Generic Pharmaceuticals Pricing ¶6; accord Seresto ¶10(j)(ix); Blackbaud ¶30; Zantac ¶23; PPI ¶12; Google Play ¶60.  The witness, questioning counsel, and “any individual present in the same physical location as the witness” (except technicians) “must keep their cameras on and remain visible when the Remote Deposition is on the record.”  Mednax ¶34.  If the deposition involves an interpreter, the interpreter should also be on camera and visible to all participants.  McKinsey ¶3(f).

At the beginning of the deposition, the witness “will pan their video around the room . . . so that everyone attending remotely can see the room setup.”  Onglyza, ¶6.

The host technology “must permit the defending lawyer(s) or other Attendees to assert objections in real time,” and the deposition must be paused if any problem prevents real-time objections.  H/C ¶3(I).

“[T]hose attending but not defending or actively questioning the witness must mute their microphones.”  Gardasil ¶B(14); Mednax ¶36; McKinsey ¶3(e); Generic Pharmaceuticals Pricing ¶6; accord SoClean ¶3(g); Blackbaud ¶17; Zantac ¶¶12, 23; BHR §IV(D); H/C ¶3(B); PPI ¶12.  Cf. Davol ¶6 (host technology “may also establish a separate access or conference line that is for listening/viewing only but that will otherwise remain muted throughout the deposition”) ; Google Play ¶60 (muting at “discretion” or operator or “direction” of court reporter).

“In no event shall the Operator mute the Court Reporter’s, Questioning Attorney’s, Witness’s, or Defending Attorney’s line while the Remote Deposition is being conducted.”  Google Play ¶60; McKinsey ¶3(e); Seresto ¶10(j)(viii).

When not speaking, participants “may tum off their webcams when the Remote Deposition is on the record” and must turn the camera back on before speaking.  Mednax ¶37.

Orders also differ on what non-questioning participants are supposed to do:

  • SoClean ¶3(g); McKinsey ¶3(e) (requiring the host platform “to show in real-time a list of all persons attending”; visibility of participant not actively questioning is optional (“may”)).
  • Blackbaud ¶30 (all attendees “shall log into” the host technology “so that all participants can hear each other and be aware of those who are present”).
  • Gardasil ¶B(14) (“All persons attending remotely shall identify any other person who is utilizing their connection to view /listen to any portion of the proceeding.”).
  • Generic Pharmaceuticals Pricing ¶16 (“All attendees other than the witness, witness’s counsel, the examining attorney, and the court reporter should endeavor to keep their camera off during the deposition”).
  • Davol ¶6 (“participating attorneys must be visible to all other participants during the deposition”).
  • With Onglyza, ¶6 (“all attorneys” must be on “video so that their faces can be seen at all times”).
  • Zantac ¶12 (remote attendees who are not participating “shall also turn off their camera, such that they are not visible on screen”).

“Attendees appearing on video should not come and go while on the record during the deposition.”  Generic Pharmaceuticals Pricing ¶16.

There shall be “breaks of at least five minutes each hour during the deposition, or at such other intervals as the Witness or court reporter may request.”  BHR §IV(D).  Cf. Mednax ¶28 (providing for “reasonable” breaks “as is customary”).

Any deposition participant can request the host technology to provide “breakout rooms.”  Mednax ¶19.

If the host technology includes a “breakout room,” it shall be controlled by the court reporter.  “Breakout” conversations are not recorded.  Zantac ¶32; accord Mednax ¶19; Seresto ¶10(j)(vii); Blackbaud ¶32 (except the room is controlled by the host technology service).

Any attorney in the wrong breakout room “shall identify himself or herself and leave.”  Zantac ¶32.

Noticing or defending counsel may, “in good faith,” state a belief that “any deposition has been adversely affected by the fact it was taken as a Remote Deposition” and thereafter seek leave of court “to continue or re-open the deposition at a later date, either remotely or in person,” with the requesting party bearing the “burden” of persuasion.  BHR §V.(A).

Documents and Exhibits

Counsel taking and defending the remote deposition are jointly “responsible for ensuring that any exhibits they wish to use at the deposition can be shown to the Witness in a manner that enables [all participants] to review the complete exhibits (i.e., not a snapshot or excerpt) during the course of the deposition.”  BHR §III(C).  Accord Seresto ¶10(j)(xii); Google Play ¶62.  See Gardasil ¶B(15) (the witness “is entitled to full and fair access to any exhibits upon which [s/he] may be examined”).

“The court reporter shall maintain the official records of exhibits introduced via any means during a remote deposition.”  Davol ¶7.

The host technology “must allow counsel to display and annotate exhibits for the witness, add and remove exhibits, and change the order in which the exhibits are presented to the witness.”  SoClean ¶3(j); McKinsey ¶3(h); Mednax ¶40; McKinsey ¶3(h); Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; PPI ¶15.  Cf. Google Play ¶62 (exhibits the responsibility of questioning attorneys, but they may use “a technician provided by the vendor”).

Exhibits that are marked up, altered or created during a remote deposition should be immediately accessible to all participants.  All participants should receive copies in real time, or if not possible “as soon as practicable” after the deposition concludes.  Gardasil ¶B(20).

Some MDL orders consider pre-marked electronic exhibits to be the rule.  Mednax ¶40; Blackbaud ¶33; Generic Pharmaceuticals Pricing ¶11(A); Valsartan Exhibits ¶1; Onglyza, ¶14; PPI ¶15.  Others require use of hard copy exhibits.  H/C ¶5(A).  Some are ambiguous.  Davol ¶8; SoClean ¶3(j) (either electronic or hard-copy “equate”); McKinsey ¶3(h) (same); Google Play ¶62 (use of PDF exhibits at the option of each questioning attorney).

Electronic documents are usually distributed through the host technology.  Gardasil ¶B(15)(1v); Davol ¶8.  All remotely attending counsel “shall share” electronic copies of their possible exhibits with the court reporter, either by email of through “other secure shared platform like Box or Dropbox.”  Gardasil ¶B(15)(ii).

Where electronic documents are preferred, parties may also use hard copy paper exhibits.  Generic Pharmaceuticals Pricing ¶11(A).  A witness’ desire for paper copies of exhibits should be accommodated (except for documents only existing electronically), with disputes resolved by the MDL magistrate.  Id.; accord Zantac ¶26.

Whenever hard copies of exhibits are sent, the recipient “shall confirm receipt of the package” by email.  Gardasil ¶B(15)(i).

Where hard copies are preferred, “the witness may not be required to review a document on the screen if he or she chooses not to do so and prefers instead to review the hard copy only.”  H/C ¶5(E); PPI ¶15.

Where hard copies are preferred, and “an unusual circumstance arises where counsel conducting the witness examination could not have anticipated using an exhibit,” an electronic document may be presented “using a shared screen” with that document transmitted to all participants before questioning begins.  H/C ¶5(F); accord Zantac ¶28.

“The witness and any party not taking the deposition will receive exhibits in real time, as would be the case in a standard, in-person deposition.”  Valsartan Exhibits ¶1.  “A witness may be required to use a keyboard, mouse, or other similar means to open and/or advance the pages of an exhibit.”  SoClean ¶3(j); McKinsey ¶3(h); Zantac ¶27; Mednax ¶40; accord Valsartan Exhibits ¶2.

“Deposing Counsel and Defending Counsel need not use the same means” of sharing exhibits.  BHR §III(C).

Counsel defending the witness gets a second set of documents, if attending in person.  If attending remotely, the defending attorney receives “electronic copies of the exhibits which are identical to the hard copy and electronic exhibits provided to the witness.”  Zantac ¶26; PPI ¶¶14-15.  Cf. Blackbaud ¶40 (noticing counsel “shall provide to opposing counsel an electronic copy of all documents to be shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness”).

Paper copies of exhibits should be delivered to the witness and counsel a set time in advance of the remote deposition.  They shall remain sealed and not reviewed by the witness or counsel until being unsealed on the record.  Gardasil ¶B(15)(i); Seresto ¶10(j)(xii); Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Onglyza, ¶¶12-13; Zantac ¶26; BHR §III(C); H/C ¶5(A); PPI ¶14; Google Play ¶53.

To the extent the witness has received any documents ex parte from plaintiffs’ counsel prior to the deposition, at least three days before the deposition counsel “[p]laintiffs’ [c]ounsel shall send to [d]efendant’s [c]ounsel a copy of all such documents, either in hard copy or electronic copy (in the same manner as provided to the [w]itness. . . .”).  BHR §III(D).

Gardasil created special procedures for treating physician depositions.  First, they are presumptively remote, unless the treater is also designated or previously served as an expert witness.  Gardasil ¶C(1).  As with any other witness, physicians may have their own counsel present.  Gardasil ¶C(2).  Access instructions for physician witness must be provided a week in advance of the deposition, and shall include a copy of the deposition protocol.  Gardasil ¶C(4)(e-f).  A physician witness’ physical location must be stated on the record.  Gardasil ¶C(4)(k).  Medical records used during physician (and probably any) deposition should bear the numbering created by the service that obtained them.  Gardasil ¶C(7)(ii).

Any exhibit longer than 100 pages should be provided to the witness in hard copy.  Zantac ¶26; accord Davol ¶8; PPI ¶14.  In Gardasil that limit was reduced to 25 pages.  Gardasil ¶B(15)(i).

“[T]o the extent practicable, at least 48 hours prior to a remote deposition of a non-party healthcare provider or other third party (but not retained experts), the noticing party shall exchange with counsel of record copies of all documents shown to, or discussed with, the [witness].”  Davol ¶9.

On pain of not being able to question on any exhibit not delivered, “[t]he noticing party and any other party who intends to use exhibits during the deposition shall deliver complete copies of all potential exhibits to be used to all Participants.”  H/C ¶5(A).

Large, late-produced documents may be distributed electronically to all participants through secure file sharing technology.  Gardasil ¶B(19).

If the witness is required to produce documents, those documents must “be provided to the noticing party two days prior to the deposition in electronic format for use at the deposition.”  Onglyza, ¶11.  This order assumes a technologically proficient witness.

An “examining attorney” may “utiliz[e] electronic versions of unanticipated exhibits where reasonably necessary.”  Zantac ¶26; accord Generic Pharmaceuticals Pricing ¶11(A); Onglyza, ¶13; H/C ¶5(A); PPI ¶14.

If necessary, electronic exhibits can be used, both by the noticing party (subject to a good faith requirement) and non-noticing participants.  Generic Pharmaceuticals Pricing ¶11(A).

That an exhibit was provided electronically is not a basis for inadmissibility at trial.  Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; BHR §IV(B); PPI ¶15.

The party noticing the deposition is responsible for ensuring that electronic exhibits are accessible to all participants.  Generic Pharmaceuticals Pricing ¶11(B).  Witnesses “shall have the independent ability to manipulate the exhibit (scrolling, etc.) to facilitate their review.”  Id.; accord Onglyza, ¶14.  “[T]he witness must be afforded the independent ability to review the exhibit in its entirety.”  Onglyza, ¶14; accord Zantac ¶28; H/C ¶5(F).

When the witness is being questioned about a document, that exhibit should be displayed “side-by-side with the witness.”  Onglyza, ¶3.

“Any objection to the presentation of deposition exhibits at trial is reserved.”  Gardasil ¶B(16).

Post-Deposition Follow-Up Activities

“Following completion of the deposition, the [witness] will secure the exhibits that were used in the deposition in an envelope or box immediately following the deposition and will not alter any exhibit (mark up, remove pages, etc.) after the conclusion of the deposition.”  Zantac ¶29.

After the remote deposition is completed, the witness, or his/her counsel, “shall arrange for the delivery of the official set of exhibits from the [witness] to the court reporter.”  H/C ¶5(D).

The court reporter may also receive a copy of the video recording of the remote deposition for use “to improve the accuracy of any written transcript.”  Gardasil ¶C(4)(m); Mednax ¶15.

Unused exhibits are not to be reviewed, and the noticing party may demand their return or destruction.  Seresto ¶10(j)(xii); Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Zantac ¶29; Onglyza, ¶13; H/C ¶5(A,D); PPI ¶14.  Counsel that supplied documents shall provide prepaid postage for their return.  Gardasil ¶B(17-18); Seresto ¶10(j)(xii)..

Following completion of the remote deposition, participants are expected to return any documents they received to the participant that provided them within five business days, or else destroy them within two business days.  Gardasil ¶B(17).

Participants may retain copies only of whatever documents became marked deposition exhibits.  Gardasil ¶B(17); Seresto ¶10(j)(xii).