North Carolina Appellate Court Says Civil Litigants Have Constitutional Right to the Physical Presence of Counsel During Depositions

A North Carolina hospital defending a medical malpractice action was denied constitutional due process when the trial court, citing pandemic-related health concerns, forbade its attorneys from being physically present with the hospital’s witnesses during remote depositions, according to an April 5 ruling from the North Carolina Court of Appeals.

The court’s ruling in Hall v. Wilmington Health, No. COA20-864 (N.C. Ct. App., April 5, 2022), is unprecedented. While some courts have identified a due process right to the assistance of counsel in civil proceedings, none have concluded that due process requires the physical presence of counsel during a deposition. The court declined to consider whether or not due process could be secured through counsel’s remote participation in the deposition, finding instead that prejudice could be presumed from counsel’s lack of physical presence in the room with the deponent.

The court’s ruling was not unanimous. Judge Chris Dillon, dissenting, argued that the hospital’s due process rights could be provided by its attorneys’ remote participation in the deposition. He pointed to several court rulings explaining how the thoughtful use of technology and remote deposition protocols adequately protected the deponent’s rights. See, e.g., H & T Fair Hills, Ltd. v. All. Pipeline L.P., No. 19-1095 (D. Minn. Sept. 14, 2020), and In re Broiler Chicken Antitrust Litigation, No. 16-8637 (N.D. Ill. June 25, 2020).

Hall v. Wilmington Health is likely to be the first of many post-COVID judicial evaluations of which rights were lost — and which were adequately preserved — when the legal community resolved to press on with court business as much as possible during the pandemic.

Three Observations About Hall v. Wilmington Health

There’s a lot to chew on in the court’s opinion in Hall v. Wilmington Health. However, three aspects deserve highlighting because of their possible applicability to civil litigants outside North Carolina.

N.C. court makes new law

It should not be surprising that the COVID-19 pandemic continues to generate novel legal rulings. In Hall v. Wilmington Health, Chief Judge Donna Stroud concluded that cases finding a due process right to the presence of counsel during trials supported finding a similar due process right to the physical presence of counsel during depositions. That’s quite a leap in legal reasoning.

In Tropic Leisure Corp. v. Hailey, 796 S.E.2d 129 (N.C. Ct. App. 2017), a North Carolina appellate court held that a litigant in small claims court was denied due process because there was no opportunity to be represented by counsel in that proceeding. Judge Stroud said that what was important about Tropic Leisure was that it recognized the importance of legal counsel “in developing a factual record” and that this general principle – the importance of having legal counsel – applies to pretrial discovery as well.

Judge Stroud pointed out in Hall v. Wilmington Health that counsel serves an important role in depositions by objecting to improper questions and protecting privileges. She did not believe counsel could adequately serve this role without being in the same room with the client. Moreover, Judge Stroud noted, in cases where counsel have been banned from attending depositions, it typically has been for the purpose of protecting the deponent from harassment or threats. That’s not the case here, where the trial court’s order prohibited Wilmington Health’s attorneys from being physically present with Wilmington Health’s own witnesses.

Judge Stroud also found support for extending due process protections to civil depositions in Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825, 831 (1st Cir. 2015), where the First Circuit remarked that due process “safeguards a litigant’s interest in communicating freely with counsel both in preparation for and during trial.”

“Given Danny B.’s emphasis on safeguarding a litigant’s interest in communicating freely in preparation for trial, it further supports extending the due process right to retain counsel to the discovery context,” Judge Stroud wrote.

Trial court’s blanket ruling infringed rights

In cases where fundamental rights are involved, blanket, “one size fits all” rulings are constitutionally suspect. That was certainly the case here. The trial court, faced with the plaintiff’s motion to take two depositions of its own witnesses remotely, ruled that all depositions in the case would be taken remotely and that counsel for both parties could not be physically present with the deponents at any of them. The trial court declared:

[A]ll counsel shall appear at any and all depositions solely by remote videoconferencing and counsel shall not physically appear in the presence of the witness. The witness shall also appear by remote videoconferencing outside the physical presence of any counsel for any party.

The appellate court ruled that this order went too far. Because the hospital had a due process right for its attorneys to be physically present with the deponent, each deposition should be considered on a case-by-case basis, and the hospital’s due process rights should be restricted as little as possible.

“[T]he trial court’s order banning retained counsel from being physically present with their client during depositions, without consideration of the circumstances of the particular deposition or preferences of the deponent and attorney involved in the deposition, violates the Due Process Clause,” Judge Stroud wrote. 

Anti-technology sentiments?

To date, courts entertaining challenges to remote depositions have been somewhat dismissive of litigators’ arguments that remote depositions are unfairly difficult to conduct — whether due to the lack of adequate technology or counsel’s and parties’ unfamiliarity or competence with the technology used to conduct remote depositions, or due to traditional beliefs that examination and cross-examinations are more effective when conducted in person.

For the most part, courts have demanded that litigators raise their technology game and adapt their litigation skill set to accommodate virtual technologies, particularly during the COVID-19 pandemic.

Not so in this case. Judge Stroud was sympathetic with the hospital’s argument that litigants should not be disadvantaged because an attorney or a party is unskilled or unfamiliar with the technology used to conduct remote depositions. For example, she noted, a technological glitch could occur that causes a deponent to not hear an attorney’s assertion of privilege.

“The attorney and deponent should normally be able to make their own decision of their physical proximity during a deposition,” Judge 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.”

There was no discussion in Hall v. Wilmington Health of how remote technologies and remote deposition protocols could be — and have been — used to protect the rights of all participants in remote depositions. Judge Stroud concluded that prejudice to the hospital “can be fairly presumed” if the hospital’s attorney is not allowed to be physically present with hospital deponents.

The North Carolina appellate court’s ruling, while technically limited in legal effect to that state alone, is certain to get the attention of litigators across the country. After all, orders prohibiting attorneys from being physically present with their clients during remote depositions are not uncommon, especially when the opposing party’s attorney is participating from a remote location. It seems inevitable that many courts, prompted by pioneering cases such as Hall v. Wilmington Health, will be examining similar legal issues in the very near future.