Las Vegas attorney Michael Lowry of Wilson Elser publishes the Compelling Discovery website, a blog devoted to discovery in civil litigation. He recently researched and wrote about an issue that I had never thought about before: can an attorney save the cost of hiring a deposition videographer and just use an iPhone or iPad to create a video of a witness in a deposition? Perhaps this is something that you want to consider doing. But this is definitely something that any civil litigator should think about now, so that if opposing counsel tries to do it, you will have thought about the proper response.
You'll want to read Lowry's six-part blog entry to get the full answer, but in short, it seems that most courts won't allow the practice because the attorney creating the video doesn't constitute a "an officer appointed or designated under Rule 28" pursuant to Fed. R. Civ. P. 30(b)(5)(A). But reading the rule, I'm not sure that the issue is quite that clear, and Lowry notes other courts that have allowed the practice, especially if the objecting party cannot show that there is anything wrong with the video recording.
If you want to use an iPhone or iPad to record a deposition, make sure that you notice the deposition as a video deposition, and I would be upfront in the notice about what you plan to do. Better yet, consider reaching an agreement with the other counsel in the case that the deposition will be recorded this way with everyone's consent and with everyone having access to the video when the deposition is finished. If everyone agrees to the practice, this would definitely reduce the cost of a video deposition. On the other hand, if something goes wrong with the recording, you have nobody to blame but yourself.
If opposing counsel tries to do this and you do not agree, make sure that you object as soon as possible — perhaps even in response to the notice itself, if it is clear from the notice that this is what is being contemplated. And this might be one of those rare instances in which you need to get a federal magistrate judge or state judge on the phone before the deposition begins.
It's an interesting issue. As iPhones and iPads become even better at taking videos, I can see more people opting to go this route. And who knows, as Siri and similar technology gets better, how long will it be before your iPhone can create a real-time transcript of your deposition, replacing the need for a court reporter?