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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5123" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/07/Deposition-300x230.jpg" alt="" width="300" height="230">If you&rsquo;re a litigator, you may have already experienced the brave new world of remote videoconference depositions.&nbsp; If you haven&rsquo;t yet you will, and when you do, you may have to think about what opportunities for misconduct arise when you aren&rsquo;t in the room with the witness.&nbsp; If you&rsquo;re not&nbsp;there to watch, can the other side get away with coaching the witness via emails or texts during the depo?&nbsp; No ethical opposing counsel would do such a thing, but ...
So how far can you go to ensure that no monkey-business occurs?&nbsp; Last week, a New York federal judge drew the line when a plaintiff asked her to require deponents to screen-share their computer monitors during the deposition so counsel could see if they were getting any messages from defense counsel.&nbsp; The judge denied that request, but she did order other guardrails to address plaintiff&rsquo;s concerns.
Witness coaching would &ldquo;never be seen&rdquo;
The plaintiff, a fired King &amp; Spaulding lawyer representing himself against his former firm, requested that two third-party witnesses &mdash; his former colleagues &mdash; be ordered to share their computer screens throughout their examinations.&nbsp;&nbsp;The plaintiff <a href="https://filehost.thompsonhine.com/uploads/1290000-1290323-caproni_order_6475.pdf">argued</a> that screen-sharing was needed to &ldquo;discourage&rdquo; and &ldquo;if necessary, to make observable for the record&rdquo; potential impermissible communications from counsel to the witnesses.
The district court&rsquo;s&nbsp;<a href="https://www.nysd.uscourts.gov/sites/default/files/local_rules/rules-2018-10-29.pdf">Local Rule 30.4</a> bars private conferences between deponents and their lawyers while a question is pending.&nbsp; Requiring the deponents to provide a recording or screen-share of their monitors while on the record, the plaintiff asserted, would merely give effect to the local rule in the videoconference-deposition setting.
The plaintiff also argued for the sharing based on previous occasions when he claimed opposing counsel had tried to suggest answers to other deponents by words or gestures.&nbsp; He said that at a remote deposition, the risk was that &ldquo;e.g., emails and instant messages sent to the witness&rsquo;s computer mid-testimony, could never be seen by anyone else,&rdquo; leading to undetectable misconduct.
In a short rejoinder, counsel for King &amp; Spaulding said that the request to &ldquo;surveil&rdquo; the deponents&rsquo; screens to monitor for surreptitious communications was unwarranted and unduly intrusive.&nbsp; &ldquo;As officers of this Court,&rdquo; counsel wrote, they &ldquo;will abide by [Rule 30.4] and that should be enough for Plaintiff.&rdquo;
Remote depo guardrails set
In a memo order endorsed and attached to plaintiff&rsquo;s request, the court agreed with King &amp; Spaulding&rsquo;s counsel.&nbsp; Nothing in Rule 30.4 requires the examiner to be allowed to monitor the witness&rsquo;s communications, the court ruled.&nbsp; And while it could nonetheless impose such a requirement, there was no indication, said the court, that defense counsel would not abide by the Local Rule or the court&rsquo;s order.
The court did order counsel for King &amp; Spaulding to give plaintiff prior notice before engaging in any private communication with a deponent, and also that, for the duration of the depositions, the deponents must:
<ul>
<li>close all Internet browsers, messaging applications, email programs, &ldquo;or any other Internet page or computer program that would enable the receipt or initiation of an electronic communication&rdquo; other than the platform used for the deposition; and</li>
<li>close any other applications that would generate any pop-up notices or windows on their screens.</li>
</ul>
Be honest now...
Every jurisdiction has adopted some form of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Model Rule 8.4(c)</a>, which bars lawyers from engaging in dishonesty, fraud, deceit and misrepresentation.&nbsp; It&rsquo;s no stretch to say that a lawyer who secretly texts a witness during a deposition in order to suggest answers is not on the right side of that rule.&nbsp; And, as in this case, local rules of practice will contribute to any analysis.
Faced with the inevitability of at least some remote depositions for the foreseeable future, you might want to consider the kinds of <a href="https://filehost.thompsonhine.com/uploads/245-1_895b.pdf">stipulations</a> that the parties here entered into regarding the technological and other parameters, as well as the limits the court set on the deponents&rsquo; communications during the deposition.

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Tom Feher

Legal Ethics, Professional Responsibility and the Business of Law

Screen-surveillance not required for remote depo, SDNY says, but sets other limits