“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022). Counsel was disqualified as a result.
Like many depositions during the pandemic, the Barksdale deposition took place remotely over video. Defense counsel sat in the same conference room as his client as she testified. Despite the plaintiffs’ objections, they both wore masks during the deposition. Over fifty times, defense counsel used his mask to hide the fact that he was telling his client how to answer questions.
The court felt that allowing counsel to continue in the case “would suggest a modicum of tolerance for [his] conduct where there is none.” It also referred him to the district’s presiding judge for disciplinary proceedings. Id.
While the coached client was “complicit,” the court refused a request to dismiss the case as a result. “Instead, the court permitted the plaintiffs to play a video at trial of the defendant repeating her counsel’s answers to enable a jury to assess her credibility.” Id. (emphasis added).
The sanction imposed is similar to the one described in Sanctions Imposed for Fabricated and Unproduced Text Messages. There – faced with fabricated text messages, the District of Maryland permitted defendant “to introduce both the fraudulent and the authentic versions of the text messages to attack Plaintiff’s credibility before the finder of fact.”
Misconduct in remote depositions is not unprecedented. See Ethics: More Remote Misconduct, Ethics: Misconduct in Remote Depositions, Ethics: Misconduct in Remote Trial, and Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP.
Mr. Newman’s article and the other blogs contain suggested preventative measures.
ADDENDUM – July 15, 2022.
Two people asked for additional information about the underlying facts of Barksdale School Portraits, LL v. Williams, 339 F.R.D. 341 (D. Mass. 2021).
The court wrote:
“Over Plaintiffs’ counsel’s objection, both Mr. Rosin and Ms. Williams wore face masks throughout the entire deposition, citing ‘COVID rules.’… 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. …. Counsel for Plaintiffs confronted Mr. Rosin at that time and raised concerns about an ethical violation, but Mr. Rosin rebuffed the allegation and the deposition continued. … Following the deposition, Plaintiffs’ counsel reviewed the video recording of the deposition and identified over 50 other instances where Plaintiffs’ counsel heard Mr. Rosen surreptitiously provide Ms. Williams an answer to a question followed by Ms. Williams repeating the answer.” [emphasis added].
At the hearing, Mr. Rosin did not dispute making comments. Sanctions were under Rule 30(d)(2) for impeding fair examination. The court wrote:
“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.”
A February 3, 2022, docket entry reflects that a settlement agreement led to dismissal of the action. Docket 1:20-cv-11393.
UPDATE: Aug. 30, 2022. See Kelso L. Anderson, “Sanctions for Spoon-Feeding Answers to Deposing Witness” (ABA Litigation News Summer 2022), Vol. 47, No. 4, pages 14-15 (“For example, counsel should ensure the witness does not have a cell phone or other device present that could be used for communications….”).
UPDATE: See Traci McKee and Leix Fuson, Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers (americanbar.org)(July 1, 2022).