In the words of Yogi Berra, “it’s deja vue all over again.” Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP.
Traci McKee and Lexi Fuson report that: “In a scathing opinion entered on January 10, 2022, in NuVasive Inc. v. Absolute Medical LLC et al., case number 6:17-cv-02206, the Hon. Carlos E. Mendoza of the Middle District of Florida vacated an arbitration award rendered in favor of the defendant and threatened to grant the plaintiff medical-device company a default victory after it was revealed that the defendant’s president repeatedly texted a key witness during the witness’s remote testimony.” They add that the witness swore under oath that no one else could communicate with the witness during testimony.
As they also wrote: “This is not the first case to uncover fraudulent behavior of both litigants and counsel during remote proceedings. And undoubtedly, there are countless abuses in remote proceedings that have gone unnoticed.”
The blogs illustrate the value of questions such as “is there anyone in the room with you” and instructions not to communicate with anyone during the deposition. Issues such as this can also be addressed in a discovery plan during a Fed.R.Civ.P. 26(f) conference of the parties.
In the United States District Court for the District of Maryland, Local Rule 107.14 states:
Unless otherwise ordered by the Court, during all breaks and recesses counsel may speak with a witness while conducting a direct examination of the witness but (with the exceptions noted below) may not discuss testimony with the witness, including a party, while the witness is on cross, re-direct, or re-cross examination. Notwithstanding the foregoing, unless otherwise ordered by the Court, counsel representing a defendant in a criminal case may confer with the defendant during breaks and recesses, and a non-party witness may confer with the witness’s own counsel at any time. [emphasis added].
Discovery Guideline 6 states:
While the interrogation of the deponent is in progress, neither an attorney nor the deponent should initiate a private conversation except for the purpose of determining whether a privilege should be asserted. To do so otherwise is presumptively improper….
During breaks in the taking of a deposition, no one should discuss with the deponent the substance of the prior testimony given by the deponent during the deposition. Counsel for the deponent may discuss with the deponent at such time whether a privilege should be asserted or otherwise engage in discussion not regarding the substance of the witness’s prior testimony. [emphasis added].