Like nearly every aspect of life, the way litigation is conducted has been drastically altered by the COVID-19 pandemic. As recent case law and practice directions have indicated, the court is not willing to accept there should be indefinite delays in order to conduct steps in the litigation in a pre-COVID manner. For example, while examinations for discovery would normally be conducted in a boardroom or at a reporting centre, the court is now actively encouraging them to be done over a video application, such as Zoom.
As with anything, there are benefits and drawbacks to proceeding with video discoveries. Virtual discoveries can be more cost effective and cut down on travel time and expense for witnesses and counsel. Proceeding virtually has allowed many cases to move forward rather than remaining stagnant waiting for it to be safe to hold traditional discoveries again.
Preparing the client
For any discovery, whether virtual or in person, witnesses need to be prepared for the procedural and substantive aspects of the examination.
Counsel should ascertain their client’s comfort with technology and ensure they have the necessary equipment and strong Internet connection to allow the examination to proceed. Many court reporting venues offer a free tutorial of the technology with witnesses and counsel in advance of the discovery date. Witnesses may need a need a quick tutorial of how to turn on and off their camera and microphone, enter a meeting or have multiple screens open so they can view the video feed and their documents at the same time.
Clients should also be live to nuances of a discovery which may be lost over video. It is even more important on video that witnesses wait to answer questions posed by counsel. When more than one person is speaking over videoconferencing it is even more difficult to hear what is being said than when the same occurrence happens in person.
In addition, providing a moment before answering a question permits a witness’s counsel to object or refuse a question, as body language and raising of hands is lost on video.
Witnesses should be told to let counsel know if they mishear a question or if the audio cuts out. This way counsel can repeat the question and the client can answer as accurately as possible. This will also help the court reporter transcribe the examination properly.
Organization of electronic documents
Unlike during an in-person examination, the witness may not have the required documents in front of them in hard copy, such as the affidavits of documents or the pleadings. If counsel refers to these, they may be scrolling through hundreds of pages of PDF documents attempting to find the correct tab.
PDF documents can be tabbed electronically, for easier navigation, or counsel should refer to the PDF page number rather than tab number, so witnesses can quickly scroll to the correct document being referred to. Documents should be clearly labelled so witnesses know which document is indicated.
Counsel should connect in advance of the discovery to ensure that they are on the same page with how documents will be presented and referenced to the witness in order to maximize efficiency on the scheduled day.
Confidentiality concerns
In contrast to being in a closed-door boardroom, many virtual discoveries are taking place in people’s home offices, bedrooms or at kitchen tables, where the confidentiality of the venue(s) is not readily apparent to the participants. All parties should ensure they are in a secure, private location where there will not be undue interruptions or people overhearing the examination.
Privacy is key — not just for the integrity and confidentiality of the examination, but also to ensure the examination is free of distractions. Though an occasional pet or child walking through the background of a video meeting has come to be a sometimes welcome interruption, these should be minimized and prevented when possible.
Also, with the features available on most videoconferencing platforms, it is important to ensure that no parties, other than the court reporter, are recording the examination.
Technical requirements
The last thing anyone wants during a virtual discovery is for their home Internet to cut out or be unreliable. As most people have been working from home for many months now, they are likely aware of the reliability of their Wi-Fi, or where in their home it is weakest and strongest. Parties can also have their phone’s data as a backup for Internet access, using the “hotspot” feature.
Additionally, the parties should ensure they have whatever video application is being used downloaded properly prior to the examination.
If possible, parties should use headphones that have a microphone, rather than relying on their laptop microphone. Laptop audio can sound tinny and distant, whereas a microphone usually offers clearer sound, with less background noise coming through. This allows everyone to hear what is being said, and for the court reporter to record all the questions and answers accurately and without interruption.
Maintaining the gravity of the examination
Both a pro and a con of virtual examinations is that they can feel more relaxed, which some may argue negatively impacts the integrity of the process. Instead of getting dressed up in a suit and going into a big office building, sitting down in a boardroom full of lawyers and placing their hand on a holy book, they are likely sitting in their home not far from all the normal comforts they enjoy.
However, the virtual nature of video discoveries does not mean that their gravity should be lost on clients or that protocols should be loosened. The serious consequences of not telling the truth on the record, or of receiving assistance during the examination, should be explained.
Nothing privileged should be discussed in the Zoom for the examination, even if everyone has left or is on a break. It can be confirmed on the record that the witness is not using any chat applications or any other documents other than ones produced within the litigation.
Virtual examinations appear to be here to stay as it permits litigation to proceed, which is a necessary function of our democratic society.
With a little forethought, virtual discoveries can (and should) Zoom on without a hitch.
This article was written by Samantha Lucifora and Lexa Cutler and was originally published by The Lawyer’s Daily on February 24, 2021. Samantha Lucifora is a senior associate at Monkhouse Law. Samantha practises all aspects of employment and labour law, although she specializes in assisting employees with complex bonus/stock compensation structures and employers who have human resource issues. Lexa Cutler is an articling student at Monkhouse Law, assisting in both the employment section and the class action division of Monkhouse Law.
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