Practical and Ethical Considerations for Litigating in a Pandemic

Written by: Edna L. McLain, SmithAmundsen LLC, Chicago, and Jennifer B. Groszek, JD, ProQuest, a division of Alliant Insurance Services, Inc., Chicago

March 2020 flung litigators into an online world. Regular court room appearances turned into Zoom hearings and status calls, and remote electronic depositions, mediations and even trials became the norm. Litigating remotely and online continues to present challenges as everyone navigates through the quagmire of maintaining court room decorum, civil procedure, trial delays and extensive party communications through email.

As we enter 2021, many courts are still closed to in-person hearings and even moving forward with Zoom civil jury trials, while some others are open and or adopting a hybrid model. Remote litigation in some capacity appears to be the landscape for many of us for the foreseeable future. As we continue to meet the challenges of litigating in an online world, it is important to recognize several potential ethical pitfalls.

For example, on April 29, 2020, the Illinois Supreme Court temporarily amended Illinois Supreme Court Rule 206(h) governing depositions by remote electronic means in response to the initial statewide shutdown due to the COVID-19 pandemic. The amended rule (1) suspended the requirement that the deponent must be in the presence of the court reporter, (2) permitted the sharing of exhibits in real time via electronic means such as utilizing the Zoom screen-sharing feature, (3) suspended the option of appearing in person for a deposition by remote electronic means, (4) added a provision that the 3-hour rule would not include any time spent on addressing technology issues that arose during the deposition, (5) and added a provision that no recording would be permitted other than the method disclosed in the notice. See ILL. S. CT. R. 206(h)(1-6). These changes allowed some discovery to proceed via remote electronic means during a time when in-person depositions had ground to a halt as a result of the pandemic.

However, with everyone involved in remote depositions being in different physical locations, certain practical and ethical considerations presented themselves concerning the conduct of the deponent and attorneys involved. Recognizing that fully remote depositions presented some challenges, in the Committee Comments accompanying amended Rule 206(h), the Rules Committee specifically noted that “care must be taken to ensure the integrity of the examination” of witnesses whose depositions were taken via remote electronic means. The Comments state the deponent may be examined about the identity of everyone in the room with the deponent, and it is recommended that at the start of every deposition via remote means this question should be asked of and answered by the deponent. Many lawsuits involve the discussion of sensitive information that may be otherwise protected by confidentiality clauses or legal privileges, and to preserve those privileges, you need to make sure information is not inadvertently shared with non-parties. Additionally, you also want to avoid anyone providing information to the deponent that cannot be seen on screen. This is why the Committee Comments further state that all persons in the room with the deponent should separately participate in the videoconference. The Comments further remind counsel representing a deponent to be cognizant of his or her obligations under the Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel) and 8.4(d) (Misconduct) and to instruct the deponent he or she may not communicate with anyone other than the examining attorney and the court reporter during the deposition and that the deponent may not consult any written, printed, or electronic information other than what was provided by the examining attorney.

Although not specifically addressed in the Comments, along these lines, an examining attorney may want to ask the deponent what electronic devices they have in the room and what devices the deponent is and is not using for the remote electronic deposition. All other devices not being used should be powered down. Additionally, keep in mind that remote electronic depositions via platforms like Zoom, Microsoft Teams, and Cisco WebEx include both audio and video, so during breaks, the deponent’s counsel should remind the deponent to mute audio and turn off the video to avoid any discussions being overhead by others.

Finally, with respect to the added subsection (h)(6), keep in mind that many of these videoconference platforms allow for recording of the session, but no party should be permitted to record the deposition without proper notice. Further, Illinois Supreme Court Rule 205(d) does not permit the taking of a deposition by a relative of or attorney for any party or a person financially interested in the action, and Rule 206(g) sets out the proper method for video recording depositions. Arguably, only a neutral party like a court reporter should be in charge of setting up the Zoom videoconference itself and the video recording of the deposition. This is to avoid one party being in charge of the Zoom session and disabling features like screen-sharing to display exhibits or muting parties during the deposition. Therefore, scrutinize any deposition notices and any emails received providing the videoconference information to determine who is actually setting up the videoconference and whether the noticing party intends to record the session. If the notice suggests any attorney for one of the parties intends to provide the videoconference link and sign-in information, this should trigger an objection since only a neutral party should be handling it. It is no different than an attorney trying to set up a video camera himself for a live deposition, which simply is not permitted under the Illinois Rules. A party’s attorney also cannot have a secretary from his own office act as the court reporter or videographer under Rule 205, so why should he be permitted to control a Zoom videoconference and recording?

Litigating online also reinforces the need to be careful with information placed into email, and pay close attention to how the information is conveyed, maintained, and so on. One issue that has developed is that some judges and their clerks are putting court orders or “what the judge said” during the court hearing or status call into the body of an email to the parties. This is not problematic in itself, but when the information is not contained within a formal, court stamped order, the attorneys are left to decipher, and disagree over, what was “ordered,” resulting in attorneys combing through email chains subject to different interpretations of what took place during the hearing. To avoid this outcome, attorneys should take the extra step before the electronic court call ends to agree with all parties about the language of the order, determine who will draft it, and provide for a time frame for all others to confirm agreement before a proposed order is sent to the judge for signature. Further, email provides even more of an opportunity and great concern for ex-parte communication. Attorneys need to be even more vigilant when emailing the court and parties to ensure that everyone is included in the email.

Additionally, practicing ethically extends to online platforms, where parties must continue to follow civil and court procedure. For example, if an attorney filed a motion to dismiss with the court, a response and reply would then be filed by the respective sides, as laid out in the scheduling order. Would it be proper for an attorney to then quickly send a sur-reply in email form to the opposing party and judge without filing a motion for leave to file a sur-reply? What if the judge rules electronically, having considered the sur-reply before the opposing party has a chance to respond? Be sure to check your local rules for any administrative orders that may govern the filing and briefing of motions during the pandemic. For instance, in the Law Division in Cook County, these issues are governed by the General Administrative Order 20-9 (“GAO 20-9”) entered on December 17, 2020, which provides for specific procedures for routine, emergency, contested and uncontested motions. Under Sections 3.7 and 3.8 of GAO 20-9, briefing on a contested motion should be by agreement with standard schedules for responses and replies set out in the order.

It is important to remember that learning new technology and how to effectively use it is an ethical obligation for competent representation. As recognized in Comment 8 of Rule 1.1: Competence of the Illinois Rules of Professional Conduct of 2010, attorneys need to stay well-informed of changes not only in the law, but in practice, which includes the benefits and risks associated with technology. In the past, attorneys may not have had to be proficient with videoconference and online technology to represent clients in litigation, but now we must.

About the Authors

Edna L. McLain of SmithAmundsen LLC in Chicago defends hospitals, physicians, nurses and oral surgeons in complex medical negligence cases. She has tried multiple medical negligence cases to defense verdicts and has successfully argued an appeal before the Illinois Second District Appellate Court. Ms. McLain earned her J.D from St. Louis University School of Law and her B.A. from the University of Illinois Urbana-Champaign.

Jennifer B. Groszek, JD, is Vice President of ProQuest, a division of Alliant Insurance Services, Inc., in Chicago. Ms. Groszek provides risk management, consulting, and claims management and resolution services to a broad array of clients across the U.S. She has more than 15 years of experience as an attorney, claims specialist, and business consultant. Prior to joining ProQuest, Ms. Groszek was a Claims Consultant and Attorney managing high-exposure D&O and E&O liability claims for a broad range of clients. Groszek, who began her career as an Assistant State’s Attorney, also has extensive experience with toxic tort and environmental law.