Without a nationwide resolution to the COVID-19 pandemic in immediate sight, remote interviews are likely to become an increasing part of government investigations in the near term. Previously, remote testimony likely meant only that the investigators and interviewee were in separate locations; counsel had the opportunity to be together with the client for the testimony. But under the current circumstances, remote testimony requires all parties—including a lawyer and her client—to participate from separate locations.
Defense counsel will need to adapt her practice so that she and her client are prepared to navigate all aspects of remote testimony, including assessing the risks of proceeding remotely, negotiating potential alternatives or favorable interview conditions, and, in the event the client declines to participate, being prepared to mitigate the consequences of doing so. Before advising a client on how to respond to a government request for such testimony, counsel should consider the following issues:
- Whether the client and defense counsel have already met in person, and if not, whether they have been able to develop a rapport virtually. In particular, counsel must be able to assess the client’s credibility and prepare the client adequately for testimony.
- Whether the client is primarily a fact witness or has any exposure to liability.
- Whether the investigators will agree to remote interview conditions that are more favorable to the client, such as narrowing the interview’s scope or identifying in advance the topics and documents to be covered during the interview.
- Whether there are grounds for contesting a subpoena, and, if so, whether raising those grounds would unwisely provoke investigators.
- Whether refusing to agree to remote testimony would trigger adverse employment consequences for the client.
We explore these issues in depth in a broader article published by Law360, which can be found here.
Compliments of Richards Kibbe & Orbe LLP – a member of the EACCNY.