Virtual Hearings: Changing Perceptions of Executive Testimony?

• Publication year: 2021

Sean Coughlin and Jacqueline Meyers ^*

Abstract: Given the newly accepted ease of securing testimony via web meeting applications—a necessity as a result of the COVID-19 pandemic—this article focuses on efforts to compel the appearance of corporate executives to testify in litigation. While there are many practical advantages of virtual testimony, the authors maintain that mere convenience cannot replace legal standards of relevance and undue burden when pursing the testimony of executives.

The COVID-19 pandemic swiftly transformed the way we live and work. These once-separate spheres now occupy the same space, requiring professionals to constantly adapt to remote technologies. The legal industry has kept pace with these rapid advancements. Attorneys, adjudicators, and forums alike have embraced virtual platforms as lockdowns became our collective new normal. Many have remarked on the positive effects that virtual platforms have had on litigation—including cost, convenience, and flexibility—especially in the context of witness appearances and testimony.

These advantages, however, are predominantly practical in nature and dictated by the necessity of the COVID-19 pandemic. Accordingly, we are left to examine how the recent proliferation and accessibility of virtual appearances will continue to affect more substantive aspects of witness appearances and testimony as the pandemic recedes and life returns to "normal." Should the ease of "jumping on Zoom" meaningfully change the considerations for compelling a witness, such as a senior executive with limited to no knowledge about the facts in dispute, to appear and testify virtually?

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For purposes of examining this broad question, we focus on efforts to compel the appearance of senior-level C-suite executives to testify in litigation. This article compares the many practical advantages of virtual testimony, but reminds the reader that mere convenience cannot supplant substantive legal standards of relevance and undue burden when requesting the testimony of executives in litigation.

General Considerations for Remote Witness Testimony in Litigation

The Federal Rules of Civil Procedure distinguish objections to the medium of testimony from objections to the actual testimony itself. Each type of objection has its own legal standard. Although there is some conceptual overlap, the distinction is helpful for understanding how the exponential increase in virtual testimony during the COVID-19 pandemic may affect efforts to compel virtual testimony in a post-pandemic world.

With respect to the medium of testimony, FRCP 30(b)(4) permits depositions taken by "remote means" either by stipulation of the parties or by order of the court. The test first requires evaluation of whether there is a legitimate reason for the remote deposition by the party seeking it; and then there is a burden shift to the opposing party to make a "particularized showing" that the remote deposition is...