By Edward Duffy

Law360 (April 2, 2020, 4:23 PM EDT )

Edward Duffy

The coronavirus pandemic is rapidly disrupting every aspect of life and business around the world, including in Texas. Litigation is not immune to these developments, and recent actions by Texas courts indicate litigants will be able to force opposing parties and third parties to submit to depositions by remote means.

On March 18, the Nueces County district and county judges adopted a resolution that prohibits any person from quashing a deposition noticed to be taken remotely, when the only basis of the motion is an inability to attend in person. Although some federal courts adopted similar rules as a result of the coronavirus epidemic, Nueces County appears to be the first to adopt such rules for Texas state courts. In recent days, however, other courts — including certain district courts in Harris County and Dallas County — have adopted similar orders. 

These courts have pointed to the first emergency order from the Texas Supreme Court regarding the COVID-19 state of disaster as authority to require parties and nonparties to permit depositions using such means. The Texas Supreme Court order allows all courts in Texas to modify and suspend deadlines and procedures, subject only to constitutional limitations and without the consent of participants to the proceedings. 

Additionally, subject to the same constitutional limitations, the order allows courts to "allow or require anyone involved in any hearing, deposition, or other proceeding of any kind — including but not limited to a party, attorney, witness, or court reporter, but not including a juror to participate remotely, such as by teleconferencing, videoconferencing, or other means." Further, the order provides courts may "[c]onsider as evidence sworn statements made out of court or sworn testimony given remotely out of court, such as by teleconferencing, videoconferencing, or other means."[1]

Although only the courts in Nueces County took immediate steps to require parties to submit to remote depositions, there may be a growing trend toward requiring parties and nonparties to submit to remote depositions. This trend may grow further, given the increasing concern that some coronavirus safety measures might persist for many months. At a minimum, witnesses for at-risk populations (i.e., those over age 60 or with underlying health problems) may need to sit for depositions remotely well into the future.

Remote depositions pose a number of challenges for both the party taking the deposition and the party (or nonparty) that is deposed. As an initial matter, parties (and courts) should recognize that there are inherent drawbacks to remote depositions as compared to in-person depositions. These include difficulties in ensuring the witness has sufficient opportunities to confer with counsel and limitations on the questioning attorney's ability to assess the credibility of the witness. 

Courts should be wary of parties noticing certain depositions remotely when the purported need to take the deposition quickly is questionable. For example, a corporate representative deposition covering critical topics in a multibillion-dollar class action with a distant trial setting may not be a good candidate for a remote deposition to be taken during the next month. On the other hand, in cases with imminent trial settings or where depositions will likely lead to further discovery, remote depositions may be necessary to keep cases moving and avoid a severe backlog in the court system. 

The Nueces County order did not expressly provide for parties to seek relief from the order and preclude remote depositions from going forward in particular cases or for particular witnesses. However, several Harris County courts have included such provisions in the orders adopted, allowing parties to move for an exception from the standing orders concerning remote depositions. 

To allow for sufficient time to obtain a ruling on such motions, it would be beneficial for courts to require parties noticing remote depositions to provide sufficient notice of the deposition to ensure that a ruling on a motion to quash the deposition can be ruled upon by the court. Parties should also be cautioned to both avoid scheduling a remote deposition for improper reasons (such as trying to take advantage of a witness's potentially limited ability to confer with counsel) and to avoid quashing a remote deposition for improper reasons (such as delay).

There are also several practical steps that should be taken to facilitate the taking and defending of remote depositions. 

First, as some Harris County court orders provide, the noticing party should be responsible for providing equipment to the deponent if the deponent does not have such equipment.

Second, exhibits for the deposition should be provided in a sealed envelope and the seal should not be broken until the questioning attorney introduced the exhibit (to prevent any intentional or inadvertent "sneak peak" at the deposition exhibits). 

Third, steps should be taken to ensure the deponent is able to freely confer with his or her counsel and be reassured that counsel is actively defending the deposition. These include ensuring that the witness can see and hear both the questioning attorney and the defending attorney and allowing the witness to privately confer with counsel by videoconference during breaks at the deposition.

Attorneys will also have to confront legal, ethical and practical questions about whether to be physically present with a witness during a deposition when all other persons attend by remote means. As an initial matter, attorneys will need to determine whether any federal, state or local order would prevent them from being physically present with a witness (generally, legal services have been designated as essential and exempt from stay-at-home orders, but rules and regulations are evolving rapidly and are often vague).

Attorneys will also have to consider the potential health risks of meeting with clients (which is also made difficult by uncertainty as to how coronavirus spreads and evolving social-distancing guidelines). There are definite advantages to being physically with a witness during a deposition, but weighing those advantages against health risks will be a complex and fact-specific process. This is especially complex in situations where the witness is an employee or agent of the attorney's client.

In all cases, counsel should work cooperatively to minimize disruptions due to coronavirus and should avoid engaging in gamesmanship. Though counsel can and should continue to zealously advocate for their clients, such advocacy can accommodate reasonable accommodations and flexibility that will enable the legal system to adapt to the pandemic. This will also help ensure clients' proper access to the courts and to their right to counsel for the duration of the crisis.

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Edward W. Duffy is a partner at Reed Smith LLP. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] The Texas Supreme Court order does not expressly address Rule 199.1(b), which requires that, for depositions taken by remote means, a person authorized to administer oaths be present with the witness to swear in him or her. Although the intent of the Texas Supreme Court's order suggests courts may waive this requirement, for the avoidance of doubt, it would be beneficial for the court to issue a supplemental order that makes clear a witness may be sworn in by an authorized person who is not physically present with the witness.

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