Attorneys are in a state of confusion about how to proceed with discovery during the current public health crisis. We need more guidance from the courts as to how discovery is to proceed, as well as reassurance from the courts that we are not going to be “left out in the cold” once the emergency ends.

The Supreme Court’s order dated March 27, 2020, provides that “[t]o the extent practicable through April 26, 2020, depositions should be conducted remotely using necessary and available video technology[.]” However, what exactly does this mean? Is this stating that video depositions are now mandatory? What does “to the extent practicable” mean? Does that mean witnesses are required to appear for depositions via smartphone or iPad?  If so, how is the witness able to review documents on a smaller device?

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