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Court Rules Witness Must Testify via Virtual Deposition -- Levinson Axelrod is Already Prepared


New Jersey Courts have adapted rapidly in response to the COVID-19 pandemic, and with social distancing likely to stick around, they are increasingly relying on technology to move cases forward.

Following widespread court closures and restrictions for all but the most essential proceedings, one recent ruling from Middlesex County shows the judiciary is standing firm on its goal to process cases through the courts – even if that means requiring Plaintiffs to submit to remote depositions.

Middlesex County Judge Orders Virtual Deposition

In a recent slip and fall accident case in Middlesex County, Superior Court Judge Bruce Kaplan issued an order to compel the Plaintiff to participate in a remote deposition, despite objections from the Plaintiff (not represented by Levinson Axelrod) on the basis that she didn’t have internet access, or know much about using technology.

As court records show, the Defendant in the case (a BJ’s wholesale club) asked the Court to compel discovery after the Plaintiff cancelled a virtual deposition and contended that remote questioning would cause her unnecessary stress and “undue burden.”

The Plaintiff’s lawyer further argued that her client, a woman in her early 70s, had “absolutely no knowledge of any technology, no knowledge or access to the internet, no audio or visual knowledge, no e-mail, no printer,” and that she was “in no way technologically inclined nor does she live with anyone who can help her.”

The argument wasn’t enough.

Ultimately, the Defense suggested the Plaintiff be sent a “flight pack” consisting of an iPad, charger, hot spot, display stand, and other tools needed for a videoconference, and that a court reporter remotely assist the Plaintiff in setting up the iPad and control the device remotely to ensure she was able to access the videoconference.

In court documents, the Defense supported its “flight pack” plan by citing a Supreme Court directive from April 2020 that held, to the extent practicable, depositions “should continue to be conducted remotely using necessary and available video technology.”

Judge Kaplan, whose order was publicized on Tuesday, June 16, 2020, ruled that, given the limited nature of discovery, a remote deposition was practicable, and that if a deposition cannot occur in-person, the Plaintiff’s deposition must take place virtually through the use of Zoom or other teleconference systems.

While the Judge recognized a virtual deposition can present significant hardships to people like the Plaintiff in this case, who lacked sufficient technical knowledge, internet access, or someone to help her, he still held that “this case must move forward and the Defendant is entitled to take the Plaintiff’s deposition.”

Remote Depositions May Be New Normal

The ruling is the first of its type in New Jersey, and an indication that the use of tech, telephonic conferences, and videoconferencing platforms have resoundingly won support among the Judiciary.

While courts in other jurisdictions have generally not compelled Plaintiffs and their attorneys to proceed with remote depositions, the ruling in this case shows attorneys will need to get creative in moving cases through discovery – the formal process during which Plaintiffs and Defense exchange information and conduct questioning under oath (depositions). Plaintiffs who object to using remote technology tools to facilitate their cases will likely not be met with much sympathy from the Court.

Amid America’s ongoing COVID-19 crisis, social distancing and social gathering restrictions are likely to stick around for the foreseeable future. As a result, so too will the use of technology and videoconferencing in courtrooms across the country. Even beyond the pandemic, many believe remote depositions will become part of the “new normal” for court systems, as they provide an alternative to witnesses who must travel in order to attend in-person proceedings.

Of course, experts also express concerns that remote depositions can pose challenges. That includes not only a learning curve for some participants when it comes to using technology, but also whether Plaintiffs will have access to technology and the internet at all – something the courts will have to address and take into consideration as these proceedings become more common.

Levinson Axelrod Stays Ahead of the Curve With New iPad Pilot Program

Levinson Axelrod, P.A. has been working diligently on our clients’ cases throughout the pandemic, and has been utilizing videoconferencing and secure technology platforms to speak with new and existing clients, and move their cases along.

In light of the recent ruling, and the likelihood that New Jersey Courts will continue to rely upon remote processes, our team has created a pilot program to provide our clients with loaner iPads and the technology and support necessary for video depositions and other aspects of their cases that rely on videoconferencing and remote communications. All of our attorneys also have Zoom accounts to ensure they’re able to communicate with clients via video.

Despite sweeping changes generated by the coronavirus, Levinson Axelrod, P.A. is committed to staying ahead of the curve and ensuring that we effectively advocate for our clients – just as we have been doing since our firm was founded in 1939. As Partner Michael B. Fusco notes:

“We understand how difficult it can be as an injured victim to have to provide testimony to the insurance company’s lawyer about the worst day of their life. We have always tried to make the process as simple as possible for our clients.

While Coronavirus has created new concerns about putting groups of people together in conference rooms, we have had to think outside the box about ways to make the process as easy as possible for our clients. As a firm, we are always interested in providing the latest technology to help our clients through the litigation process and our iPad pilot program is just another example of that philosophy being implemented on a personal level.”

If you are a Levinson Axelrod client and have questions about how to proceed with testimony in your case remotely, please speak with your attorney about the various technologies available to help move your case along but maintain safe social distancing. If you have a potential personal injury or workers’ compensation case anywhere in New Jersey, contact us to speak with a lawyer.

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