A Whole New World during and post COVID? Virtual Examination Discovery in B.C.

Virtual Series – Discoveries

In British Columbia, the examination for discovery is an essential pre-trial step for all litigation which allows for the examining party to orally question an opposing party on all issues in dispute in the litigation.  Usually conducted in-person in the boardroom of a firm providing court reporting services, the social distancing rules and guidelines which have emerged in response to the Covid-19 pandemic have caused the examination for discovery procedure to move online.

The move online presents new challenges but also provides new opportunities to streamline the procedure and save costs.

Background

Prior to the pandemic, virtual discoveries were the exception to in-person discoveries. It usually involved the witness calling in from a separate location to save costs and time. All other participants would still be physically present. However, in light of the need for physical distancing, all parties in the discovery process now need to call in from their respective off-site locations. A client and their counsel may call in from the same room if physical distancing measures can be maintained.  To facilitate the online discovery, reporting firms have embraced using Zoom, Starleaf or other similar videoconference platforms.

Conducting the Virtual Discovery

Before conducting a virtual discovery, there are certain factors to consider to determine the appropriateness of proceeding virtually.  This consideration should be undertaken as far out from the discovery as practical and not left until the day before. The most important factor is the sophistication of the witness being examined and his or her comfort with video conferencing applications. These factors can often be determined by using the documents produced so far in the trial process, by conducting a Google search of the witness, or through a discussion with opposing counsel.

The other major considerations in respect of proceeding virtually relate to the litigation itself.  Counsel should consider whether credibility is an issue in the litigation or whether the litigation is document-intensive and, as well, assess whether urgency warrants proceeding virtually or whether the discovery should be delayed until an in-person discovery is practical.

To make the process easier and more efficient, counsel should be well prepared and plan their discovery in advance. The documents should be reviewed and prepared as they would be for an in-person examination for discovery. An amended list of documents should be requested beforehand for consistency in references.  It may be useful to segregate the key documents from other documents. Counsel should also prepare an outline containing all the questions they want to ask or topics they wish to raise during the examination, and  all key documents must be available for counsel’s use. There are several options for preparing the documents for a virtual discovery. A single PDF can be created with the outline and key documents all together, or an outline with citations can be created alongside a separate folder containing the key documents.

The virtual discovery session can be conducted so as to closely emulate the in-person experience. The examining party’s counsel(s), the witness, the opposing counsel(s), and a court reporter will all be present in a virtual room on the selected videoconference platform. A technical expert may also be present in the room to offer technical support. Most reporting firms have opted to use Zoom for virtual discoveries.

The witness is sworn in with specific confirmations added to reflect the virtual nature of the discovery process. The witness will be asked to confirm that they are proceeding virtually using the selected videoconference application. The witness must also confirm that they have no physical documents in front of them nor any documents or applications open on their computer. Finally, they must confirm that there is no one else present in the physical room they are in, and that they will not contemporaneously communicating, by text or email for example, on another device.

Counsel can use the screen share feature of the videoconference application to share documents. Exhibits can be emailed to the court reporter for virtual stamping.

Commentary

Conducting discoveries virtually presents challenges as well as benefits.  On the whole, proceeding virtually has proven to be a very adequate substitute for in-person discoveries. That said, some challenges warrant bearing in mind:

• Assessing Credibility. It is harder to gauge a witness’ credibility over a video screen.  There are physical indicators that often arise during cross-examination that can reveal much of the witness’ credibility that are not as evident in a virtual discovery.  Where credibility is a central issue to the litigation, careful consideration should be given as to whether to proceed virtually.
• Lowered solemnity. Virtual discoveries can bring forth a loosening of protocol and a reduction in the adversarial atmosphere, particularly as the witness may be examined from the comfort of his or her home. The witness may not appreciate the solemnity of the process and may divulge more evidence than anticipated.  This, of course, may be a benefit for an examining party but is a potential pitfall for the party being examined.
• Dishonesty. At an in-person discovery, there is no room for sleight-of-hand or assistance for the witness. However, in a virtual setting where all that is visible to counsel is witness’ face, there is the possibility that other aids—such as documents or chat applications with counsel or others—may be present in the room to assist the witness.  As noted, this concern may be partially alleviated by confirming on the record with the witness that he or she is not employing any of these.

Despite these drawbacks, there is a lot to be gained from conducting discoveries virtually.  During the pandemic, the procedure has allowed litigation to proceed when it might not have otherwise.  Additionally, there is the potential for significant savings of cost and time where parties and their counsel are located in geographically disparate locations.  The cost of flying parties in can be eliminated and the coordination of schedules can be more easily done when the need for travel is eliminated.

For more information about conducting discoveries virtually, please reach out to: Steve M. Vorbrodt, Ronald Josephson, Harpreet Dosanjh or Daniel Barber.

* Cen Yang, summer articled student, assisted with the preparation of this article.

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