Depositions are important to developing or disproving claims and getting to the factual basis of the claims. An attorney defending the deposition works hard to limit damage and to prepare (but not coach) their witnesses. The increase in the number of remote depositions raise the concern that if you are not all present in the same place that improper coaching will take place. Telephonic depositions have always raised this issue, but the increasing sophistication of technology and smart phones have made coaching during a deposition, a real problem.
In this blog, I want to give a shout out to the feature article by Kelso L. Anderson entitled “Sanctions for Spoon-Feeding Answers to Depositing Witness.” See Kelso L. Anderson, “Sanctions for Spoon-Feeding Answers to Deposing Witness” (ABA Litigation News Summer 2022), Vol. 47, No. 4. It is a must read for points for remote depositions. The article suggests that ensuring that a witness does not have a cell phone or other electronic device is spot on. It also discusses the sanctions available against counsel for violating ethical rules and texting suggested answers to deposition questions.
Remote depositions do require extra preparation and precautions should be taken to ensure that witnesses are not tampered with or coached. I recommend that the video settings always be on all the people involved in the deposition as opposed to settings that only show the person talking. Test your equipment and upload documents to be used in advance. Make sure, that it is stipulated or allowed to have the court reporter in a different location than the witness, if necessary. Also, and as I learned early on in a federal court jury trial before computers, always, always have a backup plan should your technology fail and discuss it with opposing counsel before the deposition, not when the technology fails. Murphy’s Law exists for a reason because if it can go wrong, it will.
The opinions in this blog are solely the author’s and any comments, suggestions, or replies should be sent to john@jrjoneslaw.com.
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