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By Jennifer Gibbs and Bennett Moss
To read this article in PDF format, please click here.

After the COVID-19 pandemic shook the world in early 2020, many industries pivoted to conducting business in ways that reduced or eliminated face-to-face interactions.

Fortunately, with internet capability generally readily available to everyone, businesses were quick to adopt technology to make this possible.

The legal industry was no exception. Courts were fast to transition to virtual hearings and even conduct some trials via the web. Private law firms, to the extent they had not already, implemented Zoom, Skype or Microsoft Teams into their everyday practice.

With the adoption of this technology into the litigation process, perhaps the most difficult element of litigation to replace was the in- person deposition. Depositions are a uniquely intimate affair in the litigation process and often present the only opportunity for attorneys to speak with the opposing party and experts directly.

In-person depositions not only allow attorneys to listen to a witness's own words, but also evaluate the deponent's credibility, demeanor, attitude and behaviors. While the deposition transcript is and always will be the most crucial piece of evidence obtained through a deposition, observations of these soft characteristics of deponents are also vital to attorneys in evaluating risk and potential exposure at trial.

As the pandemic continued, remote depositions became the norm, replacing in-person depositions almost entirely. There are many excellent advantages to the remote deposition, such as convenience, efficiency and the ability to quickly share exhibits.

Remote depositions proved to be so practical during the COVID-19 pandemic that many practitioners continue to conduct depositions virtually in the post-pandemic world.

However, despite the convenience of remote depositions, these virtual environments are rife with opportunities for improper behavior, particularly when it comes to witness coaching.

This article will address improper behaviors by attorneys during remote depositions, and provide suggestions for preventing and combating these behaviors.

Witness Coaching

Consider this scenario: In a remote deposition, the witness and his attorney are seated together in a conference room on separate computers. Midway through the deposition, with a question pending, counsel for the witness mutes their microphone and speaks with the client.

Once the microphones are unmuted, the witness provides the answer, and the deposition resumes over objection. Improper conduct, witness coaching or simply fat fingers?

While it is unclear what was said to the witness by their counsel, this behavior would have been impossible in an in-person deposition and highlights the opportunity for witness coaching during depositions, which defeats the purpose of obtaining truthful testimony in the discovery process.

The seminal order on sanctions relating to remote deposition witness coaching was issued in the U.S. District Court for the District of Massachusetts in Barkdale School Portraits LLC v. Williams in 2021.[1]

In Williams, during the fifth hour of a remote deposition, the attorney conducting the deposition heard the witness's counsel, who was in the same room as the witness, provide the witness with an answer to a question that was then repeated verbatim by the witness.

While the attorney confronted the witness's counsel for this behavior, the witness's counsel rebutted the allegations and the deposition continued.

Later, after listening to the audio recording of the deposition, the attorney identified more than 50 instances of the witness's counsel providing the witness with answers to questions.

The attorney moved for sanctions against the witness's counsel. The court did not hold back in its criticism of the witness's counsel's behavior, noting that "there can be little question" that the witness's counsel's actions during the deposition constituted misconduct.[2]

The court ultimately granted the motion for sanctions in part and disqualified the witness's counsel from continuing to serve as counsel in the matter.

Attorneys and courts have not yet developed a fool-proof system to prevent these types of witness coaching scenarios from occurring during remote depositions.

As the U.S. District Court for the Eastern District of Michigan noted in Crawford v. FCA US LLC last year, improper witness coaching can be cured as "witness coaching is already sanctionable."[3]

However, there are several steps that can be taken to mitigate the potential for witness coaching abuse in depositions.

At the beginning of a deposition, it is important to clarify on the record the nature of the remote deposition taking place.

Make clear on the record the physical location of all attorneys and witnesses involved to develop a clean transcript that explains the circumstances in place that could lead to future coaching abuse.

Also clarify on the record that the witness has no other applications open on their computer that may allow for private messaging between the witness and their counsel.

It is also important to ensure that all attorneys, including the witness's counsel, are visible through video, even if located in the same room as the witness.

Utilizing this practice will allow attorneys to observe any mouth movements, and individuals on video are significantly less likely to partake in unsavory deposition behavior.

This component of remote depositions is so crucial that courts have begun ordering counsel to keep their videos on and microphones unmuted during remote depositions.[4]

Scripted Testimony

Similar to improper witness coaching, the integrity of the remote deposition process can often be impeded by the improper reliance of a witness on notes that either the witness or their counsel prepared before the deposition.

The most serious example of such conduct occurred in the U.S. District Court for the District of Columbia in Doe I v. Exxon Mobile Corp. in 2021.[5]

In Exxon, the plaintiff requested the 30(b)(6) deposition of Exxon's corporate representative. While a 30(b)(6) witness is generally permitted to rely on preprepared notes in their deposition, there is a fundamental difference between relying on notes and reading notes verbatim.

Exxon's corporate representative deposition proved to be an abuse of this rule. During his deposition, the corporate representative answered questions by reading pre-prepared answers to the topics of the 30(b)(6) notice with little regard for the actual question being answered.

The deponent often answered questions with long, filibustering responses, of which the court found that more than half of the substantive questions posed to the deponent were answered in a nonresponsive fashion. Making matters worse, the witness attempted to mislead the conducting attorney by denying the extent of his reliance on these notes as well as who prepared the notes. The court ultimately ordered that the deposition be retaken and threatened that continued behavior like this would result 37(b)(A) "death penalty" sanctions.

Note reading can be a difficult issue to address, particularly if the notes are not visible on screen in the remote deposition.

Attorneys would be wise to ask questions early on in depositions as to whether the witness intends to rely on any notes prepared in advance of the deposition, and if so request that those notes be entered into the record as soon as possible.

By having outside notes entered into the record, attorneys can quickly determine which answers are genuine and which are scripted.

General Lack of Civility

If the comments sections on websites have taught us anything, it is that humans are significantly less likely to act with civility and respect online than they are face to face.

For whatever reason, general decency has no place in a virtual environment for some, and this issue can be exacerbated exponentially due to some of the colorful personalities that find their way into the legal industry.

One particularly disconcerting example of this type of illicit behavior occurred in Dugger v. Jones in the Superior Court of the Virgin Islands.[6] In that matter, the remote deposition of a key witness was being conducted.

During this remote deposition, defense counsel repeatedly accused the conducting attorney of "using racist words, tone, and conduct" and continually objected throughout the duration of the deposition.

The conducting attorney continued with the deposition, but due to the "less than collegial conduct between both counsel," the deposition was never completed.

After several emails were exchanged between counsel following the deposition, the conducting attorney unilaterally moved the court to intervene and "force decorum" between the parties.

This action ultimately led to both attorneys moving for sanctions against one another.

In its attempt to decipher the allegations made by the attorneys, the court ultimately issued an order in 2021 finding that defense counsel had frustrated the deposition in violation of Model Rule of Professional Conduct 8.4(g), which provides that it is professional misconduct for a lawyer to:

engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

The court found no evidence of the alleged racist behavior that defense counsel accused the conducting attorney of exhibiting, and instead concluded that defense counsel made continued accusations of the conducting attorney being a white colonist despite nothing to support these statements.

While the court did not issue any sanctions against either party, it did provide the following warning:

Ad hominem attacks on each other "exemplifies what happens when professionals allow their personal animosities to carry over into and infect the performance of their profession." ... The Court strongly warns that incivility and poor collegial conduct will not be tolerated by the Court. The Court considers the allegations of racism very serious. The Court finds the Defendant's unsubstantiated accusations severe, and given the gravity of these allegations, the Court has restricted both motions and the respective responses from the public domain.

Conclusion

The litigation process is, of course, inherently adversarial. However, attorneys are expected to act with civility in their role as officers of the court.

While professional ethics are taught in law school and are a required component of continuing legal education in the vast majority of states, some attorneys ignore the rules, or worse, believe they are above the rules.

If you anticipate that a forthcoming remote deposition may take a nasty turn, best practices would be for you to familiarize yourself with the applicable rules of professional conduct, and come armed and ready to read those rules onto the record should the need arise.

At the end of the day, should court intervention be required, if the court only has the deposition transcript to decipher the events that occurred, it might be difficult to obtain relief.

Preparation, precautions, and a clean and complete record — including a video of the deposition at issue — can go along way in addressing violations during the remote deposition process.

Jennifer Gibbs is a partner and Bennett Moss is a senior associate at Zelle LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Barksdale Portraits LLC v. Williams, 339 F.R.D. 341, 343 (D. Mass. 2021).

[2] "By exploiting the remote nature of the deposition to improperly assist Williams, Mr. Rosin plainly frustrated Plaintiffs' rights to a fair examination of Ms. Williams. Making matters worse, Mr. Rosin's actions were not a momentary or single lapse of judgment but were repeated numerous times over the course of the day. In coaching Ms. Williams during her deposition, Mr. Rosin undermined the truth-seeking purpose of discovery. Furthermore, Mr. Rosin's conduct has the effect of sowing 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 during the public health crisis."

[3] Crawford FCA US LLC, No. 2:20-CV-12341, 2022 WL 15898431, at *1 (E.D. Mich. Aug. 4, 2022).

[4] ARUP Lab'ys v. Pac. Med. Lab'y Inc., No. 2:20-CV-00186, 2022 WL 111069, at *1 (D. Utah Jan. 12, 2022).

[5] Doe I Exxon Mobil Corp., 539 F. Supp. 3d 59 (D.D.C. 2021).

[6] Dugger Jones, 2021 VI SUPER 120U, 2021 WL 7259161 (Dec. 20. 2021).