By Michael J. Rossi, BridgeTower Media Newswires
Anyone who has peeked at his or her cellphone during a Zoom meeting likely has recognized the potential for improper witness-coaching during a remote deposition.
When lawyers, the deponent and the court reporter are in physically different places, it is difficult for an attorney conducting a deposition to observe or control the way the deponent and his or her lawyer communicate.
Once testimony is underway, deposing counsel should ask the witness a series of questions to address the unique circumstances of a remote deposition.
Fortunately, there are some practical steps attorneys can take while conducting remote depositions to minimize the risk of improper witness-coaching.
Remote depositions likely will be a part of litigation practice for the foreseeable future. While many courts have issued orders permitting remote depositions due to the continuing challenges of conducting in-person depositions during the COVID-19 pandemic, they may well become routine even after the public health concerns subside.
Though there are pitfalls, there are also advantages to remote depositions in terms of cost and convenience.
Prohibitions on witness coaching
It is well-established that counsel and a deponent may not confer while a question is pending, except for the purpose of determining whether a privilege should be asserted.
In Massachusetts, for example, the 2001 Reporter’s Notes to Mass. R. Civ. P. 30(c) address the issue and state that “[j]ust as a lawyer may not interrupt the questioning of a witness in order to confer in private and develop strategy with the witness, nor should the lawyer be allowed to interrupt the flow of questions at a deposition.”
The Reporter’s Notes further observe that the use of private conferences between lawyer and deponent would serve to provide an “end-run” around previous amendments to Rule 30(c) intended to curtail suggestive objections by lawyers defending civil depositions.
Some jurisdictions prohibit substantive conferences between counsel and witnesses altogether during the pendency of a deposition, including during scheduled breaks and recesses.
Other courts have not gone that far, but it is generally well-settled that a witness is not permitted to communicate with his or her attorney at a deposition while questions are pending.
Practical steps to prevent improper coaching
An attorney conducting a remote deposition can begin to minimize the risks of improper coaching before the deposition begins.
In discussing logistical arrangements with opposing counsel, the deposing lawyer should insist that each person attending the deposition be visible to all other participants and that their statements be audible to all participants at all times. That means that no attendees should be allowed to hide their video feed or mute their audio while testimony is ongoing.
Such an arrangement mimics the dynamics of an in-person deposition, where it would not be possible for someone to sit invisibly in a conference room. An agreement on this point should be memorialized when the usual stipulations are put on the record.
Next, deposing counsel should set forth some additional ground rules at the outset of a deposition.
Counsel should clearly instruct the witnesses not to initiate or participate in a private conference with any other person while a question is pending, including through text message, electronic mail or the chat feature in the videoconferencing system. Even better, counsel should ask the witness to agree not to do so under oath.
Another helpful ground rule to include might be that the deponent not use a cellphone or browse the internet during the course of the deposition.
Once testimony is underway, deposing counsel should ask the witness a series of questions to address the unique circumstances of a remote deposition. Counsel might ask the witness to:
- describe where he or she is located (i.e., home or office)
- identify all electronic devices that are presently available to the witness
- identify all persons physically present in the room with the witness.
Counsel also should ask the witness to alert the other participants if any person enters the room during the course of the deposition. Under most circumstances, non-parties have no right to attend a deposition and should be asked to leave.
As with in-person depositions, counsel conducting a remote deposition should be on the lookout for signs of improper witness-coaching. They may be subtle. Was there an audible indicator of someone receiving a text message? Are there extended pauses between questions and answers? Does the deponent appear to be making eye-contact with someone off camera?
If counsel suspects that a deponent is receiving information in real-time, the best course of action is to make a record of it by describing exactly what counsel has observed — i.e., “Let the record reflect that on several occasions there has been a pause of five seconds or more between questions and answers.” Such a statement should discourage further attempts at witness coaching and also would provide a basis to challenge unfavorable testimony, if necessary.
Another option is for counsel to request that the witness move far enough away from the computer so that the witness cannot read messages on the screen, and his or her hands are visible.
Remote depositions are here to stay. Like any new technology, they present some appealing opportunities for lawyers, as well as risks of abuse. Fortunately, counsel can minimize those risks with a heightened awareness and some simple measures.
Michael J. Rossi is a partner at Conn, Kavanaugh, Rosenthal, Peisch & Ford in Boston. He practices in the area of civil litigation with an emphasis on commercial litigation, professional liability and employment litigation.