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Attorney had right to be physically present in deposition 

A discovery order that would have barred attorneys from being physically present with their clients during remotely-conducted depositions was a violation of the litigants’ due process right to the assistance of counsel, a divided panel of the North Carolina Court of Appeals has ruled in a case of first impression and one of the first of what are likely to be many cases that require the courts to grapple with novel legal questions created by the COVID-19 pandemic. 

Susan Hall sued Wilmington Health in 2019, alleging medical malpractice. The pandemic intruded upon life before the parties’ expert witnesses could be deposed, and Hall moved to require that depositions be taken virtually. New Hanover County Superior Court Judge J. Stanley Carmical granted the motion in July 2020, and although neither party had addressed the issue or requested such a restriction, he ruled that neither side’s counsel could physically appear in the witnesses’ presence during the depositions. 

Wilmington Health appealed, and in an April 5 opinion written by Chief Judge Donna Stroud, the Court of Appeals held that the restriction violated the defendant’s right to retained counsel. 

Stroud began by finding that the trial court’s order could be appealed immediately because the right to counsel is a substantial right, and Wilmington Health could suffer irreparable harm—an inability to assert privilege and possible revelation of privileged information—if it wasn’t addressed immediately. Stroud also found that even if the appeal was mooted by the ending of pandemic-related restrictions, the court still had a duty to consider an important question involving a matter of public interest. 

“Here, the public interest exception applies because the issue of banning counsel from being present in-person with their clients during depositions is a matter of first impression with a potentially far-reaching effect. The impact of COVID-19 and myriad restrictions imposed by various jurisdictions and entities is a still subject of significant public interest,” Stroud wrote, citing COVID-related proclamations from the chief justice as recent as one from February 2022. 

Turning to the merits, Stroud wrote that limitations on the personal attendance by counsel at a deposition are unusual. No North Carolina case had previously addressed such limitations, and the very few federal cases that have done so all involved protecting a deponent from some sort of personal harassment or threat. 

So Stroud turned to the court’s 2017 decision in Tropic Leisure v. Hailey, in which it refused to recognize a judgment from a court in the U.S. Virgin Islands because of its practice of prohibiting litigants from having attorneys. In Tropic Leisure, the court ruled that the due process right to be heard through retained counsel includes assistance at “the critical fact-finding phase of the litigation” and that there “is simply no substitute” for the opportunity to have a party’s chosen counsel develop the factual record. 

“Based on Tropic Leisure and the cases upon which it relied, we hold the due process right to retain and have counsel heard in civil cases extends to having the assistance of retained counsel at depositions. Tropic Leisure and the federal cases it relied upon emphasize the importance of having retained counsel’s assistance throughout the legal process including fact-finding phases such as discovery,” Stroud wrote, saying that discovery is a particularly pertinent stage of litigation because depositions can be used at trial to impeach witnesses or even in place of witness testimony in certain circumstances. 

The due process right to the assistance of retained counsel in civil cases has limits, however, and the court found persuasive the approach to analyzing the boundaries of that due process right set forth in Danny B. ex rel. Elliott v. Raimondo, a 2015 decision from the 1st U.S. Circuit Court of Appeals. In Danny B., the 1st Circuit held that a court may not restrain a litigant’s access to counsel without some substantial justification, and any such restraint should be narrowly tailored to respond to the concern that prompted it. 

Stroud said that the issue in Hall’s case was more nuanced, but the same reasoning supporting a due process right to have retained counsel at depositions in general also supported a narrower right to have counsel physically present, as in-person access to counsel has benefits over counsel merely participating in depositions remotely apart from their clients. 

“In the context of depositions, an attorney may need to step in to object to the form or substance of questions or even to protect privileged material. The attorney’s role in protecting privileged material is especially important because privileges aim to ensure privileged information is never revealed to the other side,” Stroud wrote. “An attorney may choose to participate apart from her client, but a court order forcing an attorney to participate remotely, physically apart from the client, implicates the client’s due process rights.” 

As a result, the order banning litigants’ attorneys from assisting in person at all depositions, which could include depositions of their clients, without any consideration of the circumstances of each deposition, implicated the defendant’s due process rights, Stroud wrote. While the COVID-19 pandemic presumably constituted a substantial interest, the order was still in error because it wasn’t narrowly tailored and the trial court could have used a less restrictive approach to achieve the same outcomes, and the trial court failed to consider the specific circumstances of the particular witnesses and locations at issue. 

Stroud noted that the trial court’s order was issued in the very early days of an unprecedented public health emergency and “hindsight is 20/20, and we recognize this Court has the benefit of hindsight but the trial court did not.” But while the trial court couldn’t be expected to foresee how COVID-related restrictions might be loosened in the future, it nevertheless erred by restricting the defendant’s right to the presence of retained counsel at all depositions without allowing for this possibility. 

Judge John Tyson concurred in the ruling. Judge Chris Dillon dissented. Dillon would have held that the trial court’s order didn’t affect a substantial right, and even if it did, there was no showing that this right would have been lost without an immediate appeal. Reaching the merits, Dillon said he did not believe the order violated the defendant’s due process rights. 

Kyle Nutt of Reiss & Nutt in Wilmington represented Hall. Nutt said that at least two other law firms reached out to him about the case because they were having similar issues in their own cases. Nutt also said that he was not particularly concerned about losing the appeal, as he believes the issue was now moot, but that the far bigger concern was the delay to his client’s case. 

“It is essential that this case be moved along expeditiously to ensure her right to have her day in court,” Nutt said. “If she were to pass away before she had a chance to look the jury in the eye, I view that as being far more prejudicial to the administration of justice than a defense attorney not being allowed to be there physically hold the hand of his or her client at a deposition.” 

Norman F. Klick Jr. and Jerry Allen of Walker Allen and Rob Harrington of Robinson Bradshaw in Charlotte represented Wilmington Health. They could not be reached for comment on the court’s ruling. 

The 44-page opinion is Hall v. Wilmington Health, PLLC (Lawyers Weekly No. 011-089-22). The full text of the opinion is available online at 

Follow David Donovan on Twitter @NCLWDonovan 

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