Due in large part to the COVID pandemic, deposition by videoconference has become the favored method of many attorneys. As with other technologies, once attorneys became comfortable with conducting depositions by this method, videoconference depositions provided a convenient and cost-effective way to conduct the proceeding.
In fact, specific rules have now been enacted to make it easier to conduct videoconference depositions. For example, Code of Civil Procedure § 2025.310 and CRC 3.1010 were amended to remove the requirement that a deponent appear in-person before the court reporter. Now, at the request of the noticing party or deponent, “the deposition officer may attend the deposition at a different location than the deponent via remote means.”
Unfortunately, as several recent cases illustrate, the remote nature of videoconference depositions has also lent itself to deposition abuses by attorneys and deponents.
In Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), the defendant deponent and her attorney sat in the same conference room during a videoconference deposition. During the deposition, plaintiff’s counsel believed that he overheard the defense attorney provide answers to the defendant and witnessed the defendant repeat the same answer as her own. Plaintiff’s counsel confronted the defense attorney, who denied the allegation, and the deposition continued. After the deposition, plaintiff’s counsel reviewed the video recording and confirmed his suspicion that answers had been provided. The Court granted the plaintiff’s motion to disqualify the defense attorney, and also allowed the plaintiff to play the recorded exchanges at trial. In making its disqualification order, the Court made clear that coaching at videotaped depositions will not be tolerated, as it undermines the “truth-seeking purpose of discovery,” and “sow[s] seeds of doubt in the minds of litigators and judges as to the effectiveness of remote deposition proceedings, which have become an important tool of the court.”
In Shimkus v. Scranton Quincy Clinic Co., No. 19-CV-3534 (Ct. Com. Pl Lackawanna Co., Dec. 7, 2020), a Pennsylvania Court substantiated misconduct against an attorney who was caught whispering answers to a client at a videoconference deposition. The Court ordered that the witness would be prevented from testifying at the time of trial, the witness and counsel would reimburse all other counsel for time spent in connection with preparation of the pending motion, and the matter was referred to the Disciplinary Board of the Supreme Court of Pennsylvania “for whatever action it deems necessary.”
Several attorneys have already even been disciplined for coaching clients through instant messaging. In In re Florida Bar v. James, 329 So. 3d 108 (Fla. Nov. 18, 2021), the Florida Supreme Court suspended an attorney caught during a remote deposition sending text messages to a witness with suggested answers to questions. Likewise, in State Bar of Arizona v. Claridge, No. 20-2214 (Ariz. Jan. 21, 2022), the Court suspended an attorney who utilized the video platform’s chat feature to advise his client how to answer questions while being cross-examined.
Thankfully, measures can be taken to protect against these abuses. One such method is to establish a stipulated protocol at the outset of videoconference depositions. A proper protocol can address any potential concerns and ensure there are clear ground rules for all parties, counsel and deponents to follow.
Two of the biggest concerns are when counsel for the deponent appears in person while other parties appear remotely, and the threat that deponents may receive electronic communications or other communications outside the presence of other participating parties. Therefore, the deposition protocol should address these issues.
Specifically, the protocol should address where witnesses and counsel will be located during testimony and identify all persons who are present in the room where a deponent is located. Moreover, a proper protocol should require the deponent, all counsel, the court reporter and any other participant in the deposition to remain on camera while the deponent is testifying.
Counsel and the deponent should agree that the deponent will not communicate with anyone, including the deponent’s counsel, by any means, including via electronic means, while on the record. The parties should also agree that the chat function on the remote platform will be controlled by the court reporter and will be disabled for the deposition.
So that there is no confusion, a provision should be included that the deponent will either be provided a copy of the protocol prior to the deposition or be advised of the protocol on the record at the commencement of the deposition, and an agreement that the deponent will notify the deposition participants if anyone attempts to violate the protocol, including by attempting to contact the deponent while on the record.
While the protocol itself should act as a deterrent for coaching or other improper conduct during a videoconference deposition, a party may require Court enforcement should any offending conduct arise despite the protocol. An established protocol may further support the requested remedy for any such violation, including appropriate protective orders and sanctions.
Videoconference depositions are here to stay as an important litigation tool. With some planning and cooperation, the parties can ensure the integrity of the truth-seeking process of a deposition will remain intact.