COVID-19’s Legal Ramifications Part 8: Credibility and Corona

This series is a discussion of the legal issues in the sports world amid the novel coronavirus. This is a first for our forum, where each of our contributors will be authoring at least one post, discussing either the sports world now, or what will likely happen in the future, during this unprecedented time. One post will be published each day, focusing on a new topic. Please check in each day for updates and feel free to comment with your questions or comments. Together, we will navigate this new landscape. #ubsportslaw #ublawsportsforum

CREDIBILITY AND CORONA

Over a year ago, the Los Angeles City Attorney’s Office filed a lawsuit against the Weather Company, owners of the Weather Channel, on behalf of California citizens. The complaint alleged that the Weather Channel’s app deceptively collected, shared, and profited from the geolocation data of millions of American users of the app. The Weather Company allegedly profited from selling this information to third parties, including hedge funds interested in analyzing consumer behavior.

Since the case was filed, it has been steadily heading toward trial. Unfortunately, the current health crises has disrupted legal proceedings everywhere. This case is no exception. A new motion from the defendant raises the question of whether the justice system will accommodate our new reality by allowing parties to proceed with pre-trial preparation via video conferencing technology.

IBM, the owners of the Weather Channel app (and thus, a party to the lawsuit) filed a motion to compel the plaintiff to proceed with deposition discovery using remote solutions. According to the motion, the plaintiff refuses to proceed with depositions of defense witnesses who are located in New York and Atlanta until, at a minimum, California’s current ‘stay-at-home’ order is lifted.

The defendants’ argument to compel these depositions hinges on the credibility, or lack thereof, witness testimony. Defense attorneys argue that the need to immediately proceed to remote depositions is an issue of fairness. Eyewitness testimony is notoriously unreliable, largely due to memory issues. The defense motion states: “Witnesses’ memories fade. . . Employee turnover is inevitable to some extent – particularly during economic turmoil – and may make it more difficult to locate or prepare witnesses months in the future.”

Creating a months-long gap between the close of document discovery and depositions would undoubtedly increase issues surrounding witness testimony. The further from the events that took place that witnesses are asked to recall the specifics of those events, the less likely that their testimony would be credible. This issue holds true for all ongoing litigation during the pandemic. The motion goes on to state that “pegging the beginning of depositions to an uncertain and potentially shifting future date is not a practical solution to a real problem that litigants everywhere must find ways to resolve.”

Los Angeles Superior Court Judge Mark Mooney is now faces what could be a first of this kind of decision in the midst of the pandemic. While in-person depositions would be preferred by all parties to litigation, it’s important for the legal system to find workable, fair solutions to allow cases to move forward. Allowing remote depositions is an example such a solution. Without embracing the technology that will allow cases to proceed, courts face even more severely-backlogged dockets than they were before the pandemic.

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