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How Do You Stop Improper Coaching During Remote Depositions?

November 10, 2020

On November 8, Virginia Lawyers Weekly (sub.req.) really had news you could use. In a short but really practical article, there are a number of helpful tips to deter improper witness coaching in a remote deposition.

How can an attorney observe how a deponent and their lawyer are communicating when everyone is in a physically different place? There certainly may be attorneys who might offer information, advice or feedback to a deponent in real time, while questions are pending.

We're stuck with remote depositions for a while. They have the virtue of being less expensive and more convenient.

But what can you do to stop improper coaching?

Before the deposition, the deposing lawyer should require that everyone attending the deposition be visible to all other participants and that their statements be audible to all participants at all times. That would mean that no attendees are allowed to hide their video feed or mute their audio while testimony is being given. An agreement on this issue should be memorialized when the usual stipulations are put on the record.

At the beginning of a deposition, deposing counsel should set forth some additional ground rules.

Counsel should instruct the witnesses not to initiate or participate in a private conference with any other person while a question is pending, including through text messages, email, or the chat feature in the videoconferencing system. Better still? The attorney should ask the witness to agree not to do so under oath.

Another ground rule? That the deponent refrain from using a cell phone or browsing the internet during a deposition.

Once testimony begins, deposing counsel should ask the witness to:

• describe where he or she is located (i.e., home or office);
• identify all electronic devices that are presently available to the witness; and
• identify all persons physically present in the room with the witness.

Counsel should ask the witness to notify other participants if anyone enters the room during the deposition. Under most circumstances, non-parties have no right to attend a deposition and should be asked to leave.

As with in-person depositions, counsel conducting a remote deposition should be alert for any signs of improper witness coaching. Was there an audible indicator of someone receiving a text message? Are there long pauses between questions and answers? Does the deponent appear to be making eye-contact with someone off camera?

If deposing counsel suspects that a deponent is receiving information in real-time, the correct course action is to make a record of it by describing exactly what counsel has observed — i.e., "Let the record reflect that on several occasions there has been a pause of five seconds or more between questions and answers." Such a statement would likely prevent further attempts at witness coaching and also would provide a basis to challenge unfavorable testimony.

A stronger option is for deposing counsel to ask the witness to move far enough away from the computer so that the witness is unable to read messages on the screen, and his or her hands are visible so that cell phone usage would be visible.

While all this might seem a little Draconian at first blush, it is helpful to put practical measures in place to counter the threat of remote coaching.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
https://senseient.com
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