Quiet! Remote Deposition in Progress – A Lesson Learned to Protect Against Misconduct During Remote Depositions

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By Kegan Andeskie, Esq.

To say the least, the last year and a half has posed some unique challenges for litigators, but we have done our best to adapt to practicing in a largely virtual environment.  Commiserating about the logistical and technological issues associated with virtual depositions is now commonplace, but in one U.S. District of Massachusetts case, the problems in a virtual deposition went far beyond a slow internet connection.  Recently, District Judge Indira Talwani removed a Boston lawyer from a case for surreptitiously whispering answers to his client during a Zoom deposition, and referred the lawyer to another judge for possible further action.  U.S. District Judge Leo T. Sorokin then entered an Order to Show Cause as to why the lawyer should not face further sanctions (which is still pending). 

The underlying litigation is Barksdale School Portraits, LLC, et al., v. Elizabeth Hockmeyer Williams, et al., Civil Action No. 20-cv-11393-IT, and involves a dispute between a school portrait company and a former employee over the latter starting a competing company. The sanctioned counsel represented that former employee.  During the former employee’s deposition, counsel for the portrait company claims to have overheard his adversary whisper an answer to the deponent, and confronted him about it.  After the deposition, he reviewed the recorded video, and identified more than 50 instances where he claimed he could hear counsel secretly providing answers to his client, the former employee (who would then repeat the same answer).

With cases like this one in mind, it is important to take steps to eliminate or minimize the risks of repeated or similar situations, especially for practitioners who may continue to operate in a digital space for the foreseeable future.  The following steps should assist in protecting your interests and that of your clients:

  • Consider In-Person Depositions:  With COVID-19 case numbers reducing and most Americans vaccinated, returning to in-person depositions is becoming more acceptable.  If you choose this route, be sure to take appropriate safety precautions such as social distancing and requesting proof of vaccination.  Also, consider requiring masks for everyone in the room other than the deponent.   
  • Require Separate Rooms:  If you opt to continue with remote depositions, consider requesting that opposing counsel not be in the same physical space during the deposition.  This serves several purposes – First, it prevents similar misconduct of whispering or passing notes between lawyers and clients during the deposition.  Second, the primary advantage of remote vs. in-person depositions is that a remote deposition does not require the use of masks.  If your adversary and the deponent are in the same room, they may be wearing masks, making it more difficult to assess subtle facial responses and reactions via videoconference. 
  • Require Separate Cameras: If, for a justifiable reason, your adversary must be in the same room as the witness during a remote deposition, request that counsel log in separately to the Zoom meeting and do so with his or her own camera.  This will help you better monitor the actions of both counsel and the witness.
  • Record the Deposition:  In the above case, counsel was able to demonstrate over 50 instances where the deponent’s counsel was improperly passing information to the deponent because he recorded the remote deposition.  Proving as much without the recording may not have been possible.  However, while recording on Zoom is as simple as clicking a button, be sure to comply with all local rules concerning the procedure for recorded depositions.

While protecting against misconduct in litigation is an unfortunate reality that we must always be aware of, it is important to understand that the vast majority of litigators comply with all court rules and ethical obligations in adapting to remote litigation.  Cases like the above, while the exception, do illustrate that it is nonetheless essential to remain vigilant and take steps to ensure our compliance.

Please contact me or another member of NFC’s litigation team if you have any questions.


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