When the parties could not come to agreement, the plaintiff’s counsel sought relief from the court, requesting that the doctor be ordered to provide testimony without a mask. Plaintiff’s counsel noted that the deponent would be alone in a room with an unmanned camera for the deposition. The doctor’s counsel opposed the motion, relying on the doctor’s continued concerns about COVID-19.
The Pennsylvania trial court considered whether a witness’s “right” to wear a mask outweighed a lawyer’s right to watch the facial expressions of the deponent. The court found in favor of the plaintiff and required the doctor to remove his face mask for the deposition, reasoning that the plaintiff’s counsel had a right to assess the doctor’s credibility. It further explained that “fact finders should be able to see witnesses as they testify. Sometimes, facial expressions that accompany verbal testimony are of critical importance in assessing whether somebody is unsure, or perhaps even lying.”
Pointing to its vast discretion in discovery oversight, the court concluded that “complete social isolation” afforded the doctor the best “COVID protection” that would still allow plaintiff’s counsel to adequately assess the doctor as a witness. Noting the importance of the precautions to reduce “the risk of infection to an almost de minimus level,” the court held that an unmasked deposition should be “preferred over one that obscures a witness’s facial expressions during testimony.”
Assessing a Witness’ Facial Expressions During Testimony Remains Vital
Litigation Section leaders note that witnesses reveal information with their facial expressions and body language in ways that are as important as their spoken words. As a practical matter, “there is no substitute for seeing a witness testify,” states Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Section’s Pretrial Practice & Discovery Committee.
Nevertheless, leaders suggest that there must be a delicate “balance between witness safety and the right for a party to develop [their] evidence. . .[t]he balance; however, should be reasonable,” offers David B. Seserman, Denver, CO, cochair of the Section’s Solo & Small Firm Committee. In the Espinosa case, Seserman observes that the court exercised sound judgment by enforcing a “compromise that both addressed the witness’s safety concerns and the deposing attorney’s need to view facial expressions.””
Parties Cannot Evade Discovery Rules Because of a Pandemic
While a witness’s safety remains of primary importance, there are still some lawyers who will “do most anything to get a strategic advantage in litigation,” opines Ethan T. Tidmore, Birmingham, AL, cochair of the Section’s Trial Evidence Committee. “As attorneys, we are required to demand the same professional behavior of our clients and witnesses as we do of each other.” Schaeffer added that he trusted “trial judges to recognize when a party or its counsel is engaging in gamesmanship.”
If witnesses are concerned about contracting COVID-19 or another airborne illness, there are ways to still provide unmasked testimony. Parties likely will have more negotiations about in-person appearances for witnesses in the coming years, especially concerning the number of people permitted to attend depositions, the size and space of the place of deposition, and whether a witness can appear in a room alone.