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?

What if the attorney defending the deposition experiences technological problems, allowing the cross-examining attorney to question the defending attorney's client without the opportunity of the defending attorney to timely object? What if an attorney who is not ethically inclined is aware of a technology problem and uses the problem to get some "free punches" in on a witness?

Although I enjoy the benefits provided by technology, the taking of depositions is, and has always been, an in-person business. Attorneys should be entitled to evaluate witnesses in person, to determine demeanor, body language, and other cues as to whether the witness is being truthful. Most attorneys would likely agree that the more space there is between the cross-examining attorney and witness, the more likely the witness is to use that distance to "stonewall" or dodge questions.

Further, with regard to preparing for depositions, most attorneys would prefer that this be done in-person, and not over the phone or over a video feed. Clients are almost always more forthcoming in person than over the phone.

Additionally, it has been reported that at least one of the more commonly used video conferencing programs is vulnerable to data breaches, and to unauthorized parties being able to access a video feed. This presents privacy concerns in the context of a deposition.

While video depositions should be permitted if all parties involved agree, they should not be made mandatory, and attorneys should not be punished for deciding not to permit them in particular cases. There are simply too many potential problems regarding the reliability of the technology, the negative impact on the attorney's representation of his or her client, and the cross-examining attorney's ability to ask questions and evaluate the demeanor of the witness in-person. Guidance on these issues by the courts would be greatly appreciated.

The Supreme Court's order dated April 24, 2020, provides that most extensions of discovery deadlines and tolling of time periods will end as of May 10, 2020. The order provides that "legal practice generally can continue consistent with regular timeframes." However, this is just as ambiguous as the original order. The Supreme Court further extends discovery deadlines involving physical or mental examinations through May 31, 2020.

Currently, IME doctors are refusing to perform examinations. IME physicians are going to be significantly backlogged, and may not be able to perform examinations for months after May 31. Further, things like site inspections cannot be done remotely, and involve multiple parties gathering in one place. So how can discovery continue "consistent with regular timeframes" when these things cannot be done?

The order seems to resolve this by passing along authority to trial judges to relax discovery deadlines as needed. This seems to put the health and safety of attorneys and parties in the hands of trial judges, but without providing any guiding factors to trial judges to make those decisions.

Instead of a patchwork of rules, attorneys need a clear understanding of what the courts are thinking and considering. It would also be helpful to ask practicing lawyers what they think would be most helpful, since the lawyers on the ground have the most knowledge of the current status of discovery.

Matthew G. Minor is a partner with Sweet Pasquarelli in New Brunswick.