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:
We explore these issues in depth in a broader article published by Law360, which can be found here.