“He’s going to tell the truth. The truth is very, you know, complicated. So we went over it carefully, and just not to leave anything up to chance . . . . or Michael’s judgment.”

Fans of the NBC sitcom, the Office, might recognize this quotation which encapsulates the type of impermissible witness coaching that lawyers must be on the lookout for during depositions. Coinciding with the increased prevalence of virtual proceedings, the American Bar Association released Formal Opinion 508 on the ethics of witness preparation, particularly in the context of remote depositions. The following article will discuss the issues with remote depositions and how proposed changes to the Massachusetts Rules of Civil Procedure may limit the risk of certain types of misconduct.

Formal Opinion 508

In Formal Opinion 508, “The Ethics of Witness Preparation,” the American Bar Association Standing Committee on Ethics and Professional Responsibility addressed the unique difficulties of preventing misconduct during depositions in remote settings. Counsel can more easily catch improper coaching at an in-person deposition.

The ABA references several instances of improper witness coaching. In Vnuk v. Berwick Hospital Co., the United States District Judge for the Middle District of Pennsylvania cautioned the plaintiff’s counsel that whispering or showing notes to a client during testimony was not only “wholly inappropriate” and unprofessional, but also sanctionable. Vnuk, 2016 WL 907714, *4.

In another case referenced in Formal Opinion 508, Barksdale School Portraits, LLC v. Williams, both the defense counsel and the client wore face masks throughout the deposition, despite objection from the plaintiff’s counsel. Barksdale, 339 F.R.D. 341 (D. Mass. 2021). Five hours into the deposition, the plaintiff’s attorney overheard the deponent repeat an answer provided by their counsel verbatim. This led to a review of the video recording of the deposition, which revealed over fifty other instances where the defense counsel had similarly provided answers that the witness repeated as her own. The attorney in Barksdale received a relatively modest punishment: withdrawal from the case, forgiveness of their firm’s $65,000 fee from the client, and a referral to counseling. Other jurisdictions, however, have imposed suspensions on lawyers for impermissible witness coaching. See The Florida Bar v. James, 329 So.3d 108, 109-112 (Fla. 2021) (suspending attorney from practice for impermissible witness coaching via text-messages); In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022) (suspending lawyer for providing client with answers while off camera during remote proceeding).

The problem, then, is how to police these subtle communications in the world of remote depositions, where an opposing counsel may be off camera. A thumbs up or a similar type of direction to a witness, which has a significant impact on the testimony, becomes imperceptible in the world of Zoom.

How Massachusetts Will Limit These Issues

The current Massachusetts rule of civil procedure governing remote depositions provides as follows:

By leave of court upon motion with notice and opportunity to be heard in opposition, or by stipulation in writing of all parties, a deposition may be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(1), 37(b)(1), and 45(d), the deposition takes place where the deponent answers the questions.

Mass. R. Civ. P. 30(b)(4), as appearing in 489 Mass. 1401 (2022). On its face, the current iteration of Rule 30(b) offers little guidance in terms of preventing misconduct in remote proceedings.

Thankfully, recent amendments to Rule 30(b)(4) proposed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil Procedure should limit the extent to which impermissible coaching or interference can occur. The proposed amendment adds, in part,

The sound and video feeds for the deponent, participating counsel for the parties, self-represented parties, and the court reporter must remain on while the deposition is on the record.

The proposed amendment also limits who may observe the remote deposition to those who would be entitled to attend a live deposition in the case. Additionally, “only the deponent’s counsel and in-house counsel for a party-employed deponent are permitted to be in the same physical location as the deponent during the remote deposition.”

In their memorandum regarding the proposed rule change, the Standing Advisory Committee specifically noted that the additional guidelines were designed to address concerns regarding interference or impermissible coaching in remote depositions. If counsel are prohibited from “muting” their microphones, that will limit improper conduct such as the whispering in Vnuk. Furthermore, it will help to catch more blatant examples of impermissible coaching, as demonstrated by the numerous instances of misconduct caught upon review of the deposition video recording in Barksdale.

An Imperfect Fix

While the proposed change to Rule 30(b)(4) may limit transgressions such as those which occurred in Vnuk and Barksdale, other misconduct is harder to police. For example, the State Bar of Arizona suspended a lawyer for using an instant-messaging chat to coach his client through a cross-examination during a virtual proceeding. See In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022). In another case referenced in Formal Opinion 508, the Florida Bar disciplined a lawyer for coaching a witness through text messages during a deposition. See The Florida Bar v. James, 329 So.3d 108, 109-112 (Fla. 2021). To identify and prevent this type of misconduct, a deposing attorney would need to have a clear view of the desk area in front of the witness and counsel, and/or these individuals’ hands, to see if the witness is sending or reviewing electronic communications during the deposition.

Best Practices

Attorneys conducting virtual proceedings must be intentional and diligent in monitoring opposing counsel and deponents to ensure that misconduct in remote settings does not occur. Until Massachusetts issues further guidelines and rules governing remote depositions, attorneys can protect themselves and their clients by including specific protocols in scheduling orders, or remote deposition stipulations and notices. The following are examples of best practices to avoid improper coaching:

• Insist that all individuals participating in the deposition keep their video and audio feeds live for the duration of the testimony, with hands, faces, and lips visible. Memorialize this agreement on the record along with the usual stipulations.
• Ask the witness under oath to agree to not initiate or participate in a private conference with other persons while questions are pending, via electronic communication or otherwise.
• Instruct the witness to not use cellphones or access the internet during the deposition.
• Ensure that anyone viewing or listening to the deposition is identified on the record.
• Make a statement on the record noting any instances of conduct that suggests impermissible witness coaching.

As demonstrated by Formal Opinion 508, technology is imperfect and the risk of impermissible interference in remote depositions is particularly high. Thus, counsel will want to consider traditional in-person depositions for the most critical witnesses in a case, to limit the risks of improper coaching.