Court Orders Party Deponent to Be Unmasked

A state trial court recently required a witness to appear for a deposition without the use of a face mask, despite the deponent’s genuinely expressed fear that he might contract COVID-19. In Espinosa v. Luthercare, the court held that where the risks of COVID-19 are minimal, deponents may be required to appear for a deposition without a face mask to allow lawyers the opportunity to evaluate the witnesses’ facial expressions. ABA Litigation Section leaders note that the court’s decision is important because the ability to assess a witness’s demeanor helps counsel adequately evaluate witness veracity.

Court Grants Motion to Compel Notwithstanding Protective Measures

In Espinosa, a medical malpractice case, the plaintiff served a notice of deposition upon a defendant doctor. The parties agreed that the doctor would be permitted to participate in the deposition by video. The deposition began with the doctor’s lawyer stating on the record that his client refused to remove his mask out of fear of contracting COVID-19. The doctor and his lawyer appeared for the initial deposition in the doctor’s home. The plaintiff’s lawyer requested the doctor remove his mask so that he could see the doctor’s facial expressions. The parties were unable to come to agreement and a dispute arose. The plaintiff’s lawyer adjourned the deposition and rescheduled it for a later date.

Thereafter, the parties discussed ways the deposition might occur. Plaintiff’s counsel wanted to depose the doctor in a way to permit assessment of the witness’s facial expression. To that end, the plaintiff’s counsel offered to seclude the deponent in a separate empty room, videotaping the deposition, so long as the deponent removed his mask. The doctor refused to participate in any deposition without his face mask and rejected the isolation accommodation.

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.