COVID-19 Putting Depositions In Danger, But Courts Are Responding

Mass tort litigator Mikal Watts of San Antonio had four depositions scheduled in a case, but the COVID-19 pandemic was threatening to derail them.

“One lawyer said, ‘I’m quashing the deposition … Because I don’t want to die,’” recalled Watts, partner in Watts Guerra.

Agreeing that commercial airlines were a “petri dish,” Watts saved his depositions by using his own aircraft to fly that anxious attorney to the depositions and back home.

That type of luck didn’t hold for Corpus Christi solo practitioner Monte English, who experienced coronavirus deposition cancellations.

“Lawyers are saying, ‘I don’t want to come to your office,’” English said, adding that some attorneys also oppose remote depositions. ”Some people feel they need to be face to face to cross examine a witness, if that’s part of being able to confront your adversary.”

Watts and English have teamed up to push for a solution for litigators across Texas who find their depositions in danger because of the virus. The lawyers drafted a rule demanding lawyers proceed with remote depositions instead of cancelling them, and they approached judges in Nueces County, which adopted the solution. Now, they’re trying to spread the fix to courts in Dallas, San Antonio and Houston.

If delays only spanned a couple of weeks, it might not be a big deal, but the problem is that no one knows how long COVID-19 closures will go on. Indefinite delays could be very bad for plaintiffs lawyers who need cases to conclude to collect attorney fees, and for defense counsel who must keep up their paid-by-the-hour practices, explained English.

“It’s a lot of cases, and a lot of depositions. Litigation needs to proceed, in order to get concluded,” he said. “The technology is such that we can do this without hindering our clients’ cases.”

“The practice of law is continuing, opposed to being stopped for strategic reasons,” Watts said. “It seems appropriate that all over the state, judges should implement rules and allow remote depositions.”

On March 18, the Nueces County courts—which have canceled civil and family jury trials through May 25—made it clear in an order that a party or lawyer cannot stall a deposition just because it’s conducted remotely.

“Any deposition in a civil case may proceed telephonically or by recorded video conference, and the COVID-19 pandemic shall not be grounds to quash the same,” said the order.

Judge Nanette Hasette of the 28th District Court, who is Nueces County’s local administrative judge, explained that she knows of only a few depositions that were stopped so far because of the pandemic, but the judges acted early so the problem would not “snowball into massive stopping of discovery.”

Hasette said, “We just wanted to make sure [lawyers] kept going on getting their cases prepared, so when we do come to court, it’s not a standstill.”

A similar order came from Judge Eric Moyé of the 14th District Court in Dallas, who is Dallas County’s local civil administrative judge.

“The desire of a party to appear in-person, or at any other location shall NOT be sufficient grounds to quash a deposition notice,” Moyé’s order said.

Judge Michael Gomez of the 129th District Court in Houston, who is the Harris County local civil administrative judge, wrote in an email that his courts are working on something similar now.

College Station trial attorney Gaines West said he saw seven scheduled depositions canceled because opposing counsel in the Texas Office of the Attorney General faced travel restrictions.

He embraces the use of video depositions during the outbreak, and added that he hopes the changes will stick, not just for depositions but also for court hearings.

“This will drag everyone into the 21st century in the use of technology,” said West. “How great would it be to knock these things out, sitting in my office, rather than sitting in a courtroom waiting to be heard? That’s the positive side of the coronavirus: We have the opportunity to learn and do better, do things more efficiently.”