[author: Emily Cooke]
Remote depositions raise unique challenges for litigators, foremost among them the need to ensure the integrity of the deponent’s testimony. In a typical remote deposition scenario, where the attorney taking the deposition is not in the same room with the deponent, the sound of off-camera voices or the sight of repeated off-camera glances by the deponent can raise suspicions that the deponent’s testimony is being shaped by defending counsel or other unseen parties.
Concerns regarding witness coaching are difficult to allay from a distance. Deponents often have difficulty addressing the camera directly, and many will look off-camera instinctively or for whatever support is available from the sight of familiar faces. Off-camera audio can emanate from myriad benign sources. And — though the voices in the room may be perfectly understandable to the deponent — the audio actually captured by the remote deposition technology may not be comprehensible enough to support a claim of witness coaching.
The solution is for litigators to craft a remote deposition protocol that prevents witness coaching from occurring and provides a path to meaningful relief if, for whatever reason, one party believes the witness coaching is taking place during the deposition.
Recently, two courts examined claims that an opposing counsel had engaged in improper coaching of a remote deposition witness. In the first case, the victimized party was able to obtain meaningful relief — but only because opposing counsel admitted to egregious coaching during the entirety of the deposition. In the other case, the allegedly victimized party came away with a suggestion to write a remote deposition protocol the next time and an admonition that both attorneys should be mindful of their professional obligation of civility.
News broke earlier this month that an attorney in Massachusetts is facing disciplinary charges for coaching a witness during a remote deposition. The facts supporting the accusation of unprofessional conduct against the attorney were set out in detail in federal district judge Indira Talwani’s Aug. 31 order in Barksdale School Portraits LLC v. Williams, No.2-cv-11391 (D. Mass.). According to the court, plaintiff’s counsel became suspicious that the defendant’s attorney, who was in the room with the defendant during her remote deposition, was supplying the defendant with answers to deposition questions. (A side note: Both the attorney and the witness were wearing face-obscuring masks, a circumstance that the plaintiff objected to prior to the deposition.)
According to the court: “In the fifth hour, Plaintiffs’ counsel overheard Attorney Rosin provide Ms. Williams with an answer to a question and witnessed Ms. Williams repeating the same answer as her own.”
After the deposition was concluded, plaintiff’s counsel reviewed the deposition audio recording and discovered 50 additional instances in which the defendant’s attorney provided the deposition witness with an answer, which she subsequently repeated as her own. The attorney admitted to the court that he had, in fact, been coaching the witness during the deposition. In her order imposing discovery sanctions, Judge Talwani observed that the attorney’s behavior not only compromised the plaintiff’s right to a fair adjudication of her claims, but it also undermined confidence in remote depositions as a litigation tool:
There can be little question that Mr. Rosin’s actions during Ms. Williams’ deposition constitute misconduct. By exploiting the remote nature of the deposition to improperly assist Ms. 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.
Judge Talwani declined to dismiss the defendant’s claims as a sanction for defense counsel’s misbehavior; instead, the court ordered that jurors be allowed to hear both the deposition witness’s testimony and her attorney’s coaching, and draw their own conclusions regarding the credibility of her testimony.
A separate attorney discipline case is ongoing, In re Jeffrey Rosin, No. 21-mc-91571-LTS (D. Mass.). The court issued an order on Sept. 9 directing the attorney to show cause when professional discipline should not be imposed.The case of Johnson v. Statewide Investigative Services Inc., No. 20-C-114 (N.D. Ill., March 4, 2021), also involved an accusation that an attorney was coaching a witness during a remote deposition. Defense counsel claimed to have heard off-camera voices and observed the deponent turn to look off-camera prior to answering questions. The attorney denied the accusation, offering several reasons why the coaching accusation was unfounded. He asserted that the voice speaking was that of an associate making calls to clients and associates, that the door to the conference room where the deposition was taking place was open, allowing in office noise, and that he himself was engaged in conversations with third parties during the deposition. Finally, the attorney claimed that a lack of “technological savvy” might have contributed to excess outside noise during the deposition.
The magistrate judge credited counsel’s defense of his actions, finding that what happened during the deposition was the result of unprofessionalism and a lack of civility — not an unethical attempt to coach a witness. The magistrate judge continued:
The nature of a videoconference deposition can lend itself to assumptions that a witness is being coached when the defending attorney is off camera. Witnesses often look to their attorney before answering because they are told to pause before answering to allow an objection to be recorded. The combination of these events can easily result in the impression that a witness is being coached by counsel. In the future, counsel defending a videoconference deposition should ensure that they can be viewed on camera with the deponent. This can easily be done by counsel either appearing with the witness in one screen, or with social distancing by setting up a second device that is logged into the deposition with the second camera facing counsel but placed on mute. The Court also expects counsel in all cases before it to work together in good faith and agree to protocols to ensure that depositions by remote videoconferencing are transparent and professional, just as they would during an in-person deposition.
Addressing the attorney’s self-professed lack of tech savvy and the novel challenges raised by remote depositions, the magistrate judge wasn’t buying it: “[A]t the time of the deposition, lawyers across the country had been primarily conducting their practices using technology for ten months. … [W]hile Mr. Gomberg’s lack of technology expertise may have sufficed as an explanation at one point in time, it is no longer valid or credible.”
The magistrate judge concluded on a hopeful note:
The Court expects better from counsel moving forward and trusts that publication of this opinion will be sufficient to deter similar discovery conduct by counsel in this case or by lawyers in other cases before this Court.
Litigation is by definition a contentious affair conducted by highly trained professionals. One party’s thoughtful, well-documented assertion that opposing counsel engaged in witness coaching will inevitably be met by a thoughtful, well-reasoned defense of that allegation. Which means that the victim of witness coaching will almost always fail to obtain meaningful relief.
The answer, of course, is for counsel to build safeguards into the remote deposition protocol that will prevent witness coaching from occurring in the first place. Parties should work out in advance who will be in the room with the deponent, and whether those parties must be on camera during the entirety of the deposition. Whether or not the deponent and others present with the deponent can wear a mask is also a proper subject for inclusion in the deposition protocol.
Procedures for resolving coaching-related disputes should be decided on in advance; again, to be included in the deposition protocol. If counsel is concerned that his or her witness will require a high level of assistance, then the response should be increased attention to witness preparation and the inclusion of language in the remote deposition protocol permitting frequent breaks for off-the-record consultations.
In the end, anything that counsel believes will enhance the integrity of the deposition is fair game for inclusion in the remote deposition protocol.