As healthcare providers continue to focus their efforts on battling the COVID-19 pandemic, litigators across New York have welcomed once-thought unconventional modes of conducting depositions, hearings and oral arguments with open arms. As the courts, for the most part, remain closed to all but court personnel, attorneys and clients alike have opted to utilize video conferencing technology in order to keep their cases active and moving forward.
Recognizing the concern for litigants, witnesses and others involved in pending litigation who are physicians or medical personnel treating COVID-19 patients, the courts have recently issued orders outlining new protocols for litigation in the COVID-19 era.
Initially, on May 2, 2020, Chief Administrative Judge Marks issued Administrative Order 88/20 which stated in part: “The court shall not order or compel, for a deposition or other litigation discovery, the personal attendance of physicians or other medical personnel (including administrative personnel) who perform services at a hospital or other medical facility that is active in the treatment of COVID-19 patients.”
Subsequently, however, on June 22, 2020, in Administrative Order 129/20, Judge Marks cancelled Administrative Order 88/20 and ordered that litigation discovery should proceed electronically to the extent possible. Judge Marks also placed the onus on the courts to resolve scheduling issues involving physicians and other medical or administrative personnel who are unavailable for depositions or other discovery due to their treatment of COVID-19 patients. A copy of Administrative Order 129/20 can be accessed here.
One large concern, however, is the potential prejudice which might result to any litigant required to take part in a court proceeding (for example, a deposition or hearing) without their attorney present in the same room. While the law continues to evolve on this issue, the statute governing civil practice in New York does allow for remote depositions, but only by stipulation of the parties. Notwithstanding this provision, another provision in the statute grants courts the authority to issue protective orders “conditioning or regulating the use of any disclosure device.” This latter provision gives courts authority to order alternate means for parties to discover information relevant to litigation.
Earlier this month, Justice Baker of the Albany County Supreme Court considered whether a deposition by videoconference results in the witness forfeiting his right to the presence of counsel. While the decision, in part, focused on the interpretation of now-cancelled Administrative Order 88/20, Justice Baker, relying on both statutory and case law, stated that “requiring depositions to be conducted by remote electronic means is neither novel nor without legal authority, or beyond The Courts authority[.]” To alleviate any concerns of prejudice, Justice Baker held that, as a prerequisite, counsel was allowed to be physically present in the same room as the witness when the video deposition is conducted.
Also presented with concerns of prejudice as a result of an attorney’s inability to physically sit next to his witness at a deposition, Justice Kalish of the New York County Supreme Court, acknowledged what is considered the “new normal” and stated:
To delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable. It goes without saying that business as usual is no longer the normal. The legal profession and its clients are currently coming to grips with the “new normal” brought about by the COVID-19 pandemic. Among other things, this “new normal” means that it is no longer safe and practical for depositions to be taken in person, as was the default during the “old normal.”
Justice Kalish ultimately exercised the Court’s discretion and ordered that depositions be conducted by remote means, and held that “to the extent the law and social distancing guidance allow”, counsel may be physically present in the same room as his witness. A copy of the decision can be accessed here.
To the extent that an attorney and witness are not able to be physically present in the same room with one another during a remote deposition or hearing, the potential prejudice to a litigant is somewhat alleviated through the availability of platforms like Zoom and a host’s ability to create private “breakout rooms”. In these “breakout rooms”, an attorney and client can “meet” and have a confidential discussion – similar to what would take place during “normal” circumstances during a break in proceedings.
Weiss Zarett continues to monitor all updates from the courts regarding the rights and responsibilities of all parties involved in litigation. If you are a healthcare provider treating COVID-19 patients and are currently involved in litigation, we encourage you to speak with your attorney regarding the use of remote technology to comply with your discovery obligations.
Weiss Zarett represents healthcare providers and business owners in a wide variety of litigation matters, including advising clients on current COVID-19 issues. If you have any litigation-related questions, please email Toni-Ann M. Buono, Esq. at firstname.lastname@example.org or call us at (516) 627-7000.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including employment, corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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