Extract from Jack Kallus and Henry E. Norwood’s article “Sharing Screens, Not Secrets: Preventing Inadvertent Privilege Disclosures When Videoconferencing“
During videoconference depositions these days, the deposing attorney will probably share their screen with all parties present. The questioning attorney’s screen displays an exhibit for the deponent and opposing counsel. In the course of the questioning, the attorney receives an email from their client and a notification popup appears on the shared screen. The information could be seen by opposing counsel, their client, and even the court reporter. While the notification popup is small, it displays confidential information, such as a settlement valuation.
Will this exposure of information be considered a breach of the attorney-client privilege? Can the opposition now utilize the information obtained in this scenario to its advantage? Can it fall under the safe harbors provided by the federal rules?
Videoconferencing Technology in the Practice of Law
During the COVID-19 pandemic, much of the practice of law went remote. Videoconferencing technologies such as Zoom, Skype and Microsoft Teams have endured beyond the pandemic and are still ubiquitous in the practice of law. Videoconferencing has saved time, resources and inconvenience in the modern practice of law and should be a permanent fixture in the field to compliment in-person practice. Because of this, courts should adopt uniform rules regarding videoconference proceedings.
