BOSTON (Reuters) - Lawyers throughout the country are reconsidering whether to move forward with depositions amid the coronavirus pandemic after finding themselves restricted to conducting them by video.
Gone are the options to sit across from a witness in a conference room and grill them about what they knew and when they knew it. Now attorneys are faced with a choice: Question a witness by video conference or wait out the outbreak.
In-person depositions have become impractical as states from New York to California restrict travel and order residents to stay at home to deter the spread of COVID-19, the disease caused by the novel coronavirus. Nearly 216,000 cases had been reported as of Thursday morning.
”This is a huge balancing act right now between the desire not to have the schedules just extended and our desire to support what should be done in a national emergency,” said Steve Berman of the plaintiffs’ law firm Hagens Berman Sobol Shapiro.
Berman recently faced the conundrum of what to do about depositions in a class action alleging Apple Inc improperly replaced broken iPhones and iPads of customers with extended service plans with refurbished parts, allegations the company denies.
Berman said the pandemic hit as the parties were preparing for 14 expert witness depositions. While video was an option, he said, “do we really want the witness to have to get in a room with the videographer and the court reporter? Not really.”
Ultimately, Apple’s lawyers led by Karen Dunn of Boies Schiller Flexner and Berman agreed on Monday to delay depositions for 60 days, saying in a filing in federal court in San Francisco that conducting them from their homes was “not practicable.”
Todd Cosenza, a securities litigator at Willkie Farr & Gallagher, said in his cases, deadlines are also being extended. He said with video depositions, lawyers have less ability to confront a witness than if they do them in person.
”When you’re in the room, you can see the reaction to certain questions,” he said. “It’s just a very different vibe than confronting someone in the room with documents.”
But putting off depositions also means adding further delays to cases already impacted by the widespread cancellation of trials nationwide which is creating a backlog of cases for judges to preside over when the pandemic is over.
The U.S. Equal Employment Opportunity Commission last week sought permission in three cases in the U.S. District Court for the Western District of Wisconsin, including a pregnancy discrimination lawsuit against Walmart Inc, to conduct depositions by video or phone until the health crisis abates.
U.S. District Judge Barbara Crabb in Madison approved the proposal in Walmart’s case on Friday and ordered the parties to conduct previously-planned depositions remotely when feasible.
Beyond the logistics of carrying out depositions is the question of whether the witnesses can sit for them at all.
In at least one court, a judge, U.S. Magistrate Judge Gabriel Fuentes in Chicago, has restricted depositions of healthcare professionals in personal injury lawsuits if their work involves treating COVID-19 patients.
”All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit,” he wrote in a March 17 order.