A 2-1 ruling from the N.C. Court of Appeals Tuesday criticized a trial judge for limiting a defendant’s in-person access to attorneys during the COVID-19 pandemic. The decision could have an impact during future health scares.

“Hindsight is 20/20, and we recognize this Court has the benefit of hindsight but the trial court did not,” wrote Chief Judge Donna Stroud for the court’s majority. “Instead, the trial court was dealing with a discovery dispute in the context of an unprecedented public health emergency. But the Courts ‘shall be open’ and the Constitution is not suspended by any pandemic or emergency directives.”

The dispute in the case titled Hall v. Wilmington Health dealt with the discovery process in a medical malpractice case. Discovery is the legal term for the exchange of information that helps both sides prepare for a trial.

The plaintiff filed her complaint in April 2019 in New Hanover County. The discovery process extended into spring 2020. By that time, North Carolina and much of the rest of the world were dealing with government-mandated shutdowns associated with COVID-19.

In June 2020, the plaintiff requested an order from Judge Stanley Carmical for future depositions in the case to be conducted virtually or by phone. After a hearing on the issue, Carmical sided with the plaintiff on remote depositions.

“The written order addressed a subject not raised before in the parties’ filings or at the hearing: whether deponents could have counsel present in-person with them,” Stroud wrote. “Despite that lack of prior mention of the subject, the trial court’s order barred physical presence of counsel with any witness.”

In other words, no lawyer would be allowed to be physically present with a witness under any circumstances.

“[T]he 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,” Stroud wrote. “The impact of COVID-19 and myriad restrictions imposed by various jurisdictions and entities is a still subject of significant public interest.”

“We agree with Defendant that the trial court’s order violated its rights under the Constitution of the United States’ Fourteenth Amendment’s Due Process Clause,” Stroud wrote.

“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 chief judge added. “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. … In these situations, an attorney’s physical presence provides greater protection to a client than interacting remotely.”

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

Stroud and fellow Judge John Tyson agreed to send the case back to a trial court. There the judge will have to work out a new schedule for discovery and a trial.

Judge Chris Dillon dissented from the ruling. “The majority cites numerous cases for the proposition that a party has a due process right to counsel at depositions. I do not disagree.” Dillon wrote. “But these cases are not relevant to this appeal, as there is nothing in the appealed order prohibiting Defendant’s counsel to be present and fully participate in depositions, albeit remotely.”

“And I do not believe that the order’s prohibition of Defendant’s counsel to be physically present in the same room as any deponent violates Defendant’s due process rights, which is the basis of Defendant’s ‘substantive right’ argument,” Dillon added.

“I simply do not see a substantial right, much less one that would have been forever lost without an immediate appeal, to justify essentially putting this case on hold for over a year and a half to resolve this discovery issue,” he concluded.