Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers

For many litigators, sworn testimony today looks much different than it did two years ago. As the COVID-19 pandemic has required parties to limit travel and in-person proceedings, remote testimony for depositions, arbitrations and even trials has become the rule rather than the exception. With this transition, litigators have been confronted with unique circumstances and felt compelled to ask questions to confirm that the witness’s testimony is that of the witness, and only the witness. For example, is anyone else present in the room with the witness? Does the witness have any unauthorized lines of communication that could be used while the sworn testimony is proceeding? It has now become critical to ask a witness to swear under oath that there is no one else in the room with the witness and that no person is authorized to communicate with the witness during her or his testimony. Several recent decisions solidify this practice point and illustrate the consequences to litigants and lawyers when a witness surreptitiously communicates with others during the course of remote testimony.

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About the Author: Traci T. McKee

As a product liability litigator, Traci McKee defends medical devices and pharmaceutical products that save lives and consumer products that enhance lives. She represents product manufacturers in complex, high stakes litigation such as mass torts and class actions, as well as single-plaintiff claims. With more than a decade of litigation practice, Traci has substantial experience in all phases of litigation from discovery through trial, having served as first chair and second chair in multiple jury trials. She understands the strategies and goals of the clients she represents and develops tailored litigation strategies focused on each client’s business goals.

About the Author: Lexi C. Fuson

Lexi Fuson litigates product liability cases in state and federal courts across the U.S. and Canada, including federal multidistrict litigation (MDL) and class actions. Lexi is experienced in complex litigation, as well as regulatory compliance and risk avoidance strategies. She has substantial experience drafting product warranties, including consumer product warranties under the Magnuson-Moss Warranty Act, product manuals and instructions, and product warnings. Lexi has also assisted with managing regulatory recalls and counseling clients on regulatory compliance, including compliance with CPSC, NHTSA and FDA regulations.