The impacts of the widening novel coronavirus pandemic are hitting home here in the United States. Within the legal community, law offices are scrambling to serve clients while keeping employees safe and complying with federal guidance and emergency rules in their localities.
At the same time, state supreme courts across the country are issuing emergency orders that relax legal requirements believed to put court personnel and the general public at increased risk of contracting coronavirus. In-person proceedings are being postponed or conducted electronically when possible.
Recent guidance for businesses from the Centers for Disease Control and Prevention advises employers to take steps to “increase the physical distance among employees and between employees and others.”
The CDC recommends that employers encourage telework, where possible, and ensure that they have on hand the technology necessary to support remote work.
“Social distancing” is now a public health imperative everywhere, and it’s clear that remote computing technology will play a large role in providing both business continuity and health safety within the legal community over the next few weeks and months.
Social Distancing Via Remote Depositions
Fortunately, remote communications technologies have already gained a strong foothold in the legal profession. These tools allow pretrial depositions to be conducted without regard to the physical location of legal counsel, the deposition witness, or the court reporter. Assisted by electronic document retrieval services, a deposition conducted via videoconference is just as effective as an in-person proceeding. Often more so, due to the increased ease of retrieval of key documents and the availability of multiple litigation team members to view and contribute to the deposition.
With very few exceptions, every jurisdiction in the United States—including the federal court system—permits depositions to be conducted via videoconferencing technologies.
Only a handful of states require that the deposition witness and court reporter be physically in the same location. However, in view of the urgent need for social distancing to minimize the spread of coronavirus, even those states appear to be relaxing this requirement.
Courts Are Encouraging Remote Depositions Now
Texas and Florida are two states that appear to be moving toward temporarily relaxing the requirement that the court reporter and deposition witness be in the same physical location.
On March 13, the Texas Supreme Court and Texas Court of Criminal Appeals issued an emergency order directing trial courts to allow “anyone involved in any hearing, deposition, or other proceeding of any kind” to participate remotely via videoconferencing or similar technology.
The emergency order further directs courts to “consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means.”
The Texas order expires May 8, 2020.
In Florida, another state that ordinarily requires the witness and court reporter to be in each other’s presence while the oath is administered, the state supreme court issued March 13 an emergency order (PDF) relaxing restrictions on videoconferencing until March 27.
The Florida order suspends all rules of procedure or court opinions that limit or prohibit the use of electronic technologies for conducting proceedings remotely. Litigants are awaiting additional guidance from the court to determine if remote swearing is permitted.
In the absence of direct guidance from the Florida Supreme Court, there are options for Florida lawyers and witnesses who wish to use remote deposition technology. An oath is satisfied through the read and sign process as long the witness attests in the errata form: “Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.”
Nearly every other state supreme court has issued an order encouraging the use of videoconferencing as a means of conducting legal business to help check the spread of coronavirus. This is a highly dynamic situation that law firms should watch closely.
Depositions in the Near Future
We believe that it is only a matter of time before litigants will be asking courts to issue protective orders sparing them from the risk of contracting coronavirus through an in-person deposition appearance.
In fact, one such request has already been filed—and denied—in a dispute between competitors in the artificial Christmas tree business. A manufacturer of Christmas tree lights, based in Hong Kong, requested that previously scheduled depositions be moved to the United States because the threat of coronavirus had made it unsafe to travel to Hong Kong. The magistrate judge denied the request, reasoning that neither country was necessarily safer than the other. Willis Electric Co. Ltd. v. Polygroup Trading Ltd., No. 15-cv-03443 (D. Minn.)
While none of us can know the future course of the coronavirus pandemic, or what the public response will be, now is a good time for attorneys to consider whether currently scheduled depositions can—or should, or must—be conducted remotely.
Each individual will have a different tolerance for the health risks of an in-person deposition. This is true for both counsel and the deposition witness. It is reasonable to expect that litigants will be filing motions for protective orders to change the time, place, or manner of conducting a deposition based on concerns regarding the coronavirus pandemic.
It is also reasonable to assume that courts will be highly receptive to such health-based justifications. Law firms should be ready to respond to these motions. Even if your law firm is not a regular user of remote deposition technology, now is the time to get acquainted with this technology.
We understand that the coronavirus pandemic threatens all aspects of day-to-day law firm operations: client meetings, travel to hearings as well as discovery depositions. All are at risk of cancellation or postponement.
