For many litigators, sworn testimony today looks much different than it did two years ago. As the COVID-19 pandemic has required parties to limit travel and in-person proceedings, remote testimony for depositions, arbitrations and even trials has become the rule rather than the exception. With this transition, litigators have been confronted with unique circumstances and felt compelled to ask questions to confirm that the witness’s testimony is that of the witness, and only the witness. For example, is anyone else present in the room with the witness? Does the witness have any unauthorized lines of communication that could be used while the sworn testimony is proceeding? It has now become critical to ask a witness to swear under oath that there is no one else in the room with the witness and that no person is authorized to communicate with the witness during her or his testimony. Several recent decisions solidify this practice point and illustrate the consequences to litigants and lawyers when a witness surreptitiously communicates with others during the course of remote testimony.
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.
Critical to the court’s ruling that the arbitration award was procured by fraud, the court noted that the witness swore under oath “that there is no one else in the room with you who is not identified and that no unauthorized person can communicate with you while you are giving your testimony.” But text records later revealed that just six minutes before this sworn statement, the defendant’s president had texted the witness to “[k]eep phone on,” to which the witness responded, “Ok.” The court’s opinion describes several, specific instances of coached testimony and notes that the witness’s testimony “directly aligns in time and subject-matter with the messages being sent by [the president], and [the witness’s] testimony is always consistent with [the president’s] messages.”
The court also rebuked defendant’s counsel, highlighting that he may have been complicit in the fraud because the defendant’s president was in the attorney’s office when the surreptitious text messages were sent. Consequently, the court ordered defendant’s counsel to show cause as to why he should not be held jointly and severally liable with the defendant for an award of attorney’s fees and costs.
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. In a November 18, 2021, opinion, the Supreme Court of Florida considered a lawyer’s conduct of coaching a witness via text message during a remote deposition and found that such conduct warranted a 90-day suspension of his license. In that case, the lawyer sent text messages to a witness during a telephonic deposition telling her how to answer certain questions. The lawyer texted to the witness messages such as, “You don’t,” “You remember the deposition but not discussing checks,” “Just say 08/23” and “Don’t give an absolute answer.”
Opposing counsel, upon noticing typing sounds, asked the witness and her lawyer if they were texting each other. The lawyer defending the deposition denied it and said he was only receiving text messages from his daughter. Opposing counsel asked him to put his phone away and discontinue his texting, but he continued coaching the witness via text message. Opposing counsel ultimately stopped the deposition and filed a motion for production of all text messages sent during the deposition for in camera review. After reviewing the text messages in camera, the judge found that text messages were in fact sent during the deposition, rather than a break, and that they were not protected by the attorney-client privilege.
Other courts have also addressed this inappropriate behavior. In Salazar v. City of Phoenix, an attorney for the plaintiff sent text messages disparaging defendant’s counsel to the witness while the videoconference deposition was proceeding. See 2021 WL 2075735, at *1 (D. Ariz. May 24, 2021). Defendant’s counsel elicited testimony from the witness confirming that he had received text messages from the plaintiff’s attorney during the deposition, and the witness read such messages on the record. Id. In considering the defendant’s motion for sanctions, the District of Arizona found that counsel’s text messages to the deponent constituted bad-faith conduct and awarded monetary sanctions. Id., at *2. In doing so, the court noted that a questioning attorney is entitled to have the witness, and the witness alone, answer questions, and that a witness being deposed may not confer with his or her counsel during a deposition unless such conferral is to determine whether a privilege applies. Id.
Recognizing this issue in the ongoing era of remote depositions, some courts have even entered deposition protocols forbidding in-deposition communications with counsel. For example, the Eastern District of Louisiana entered a deposition protocol order, which included the following: “At no time during the deposition shall any counsel text, message, email, or transmit any messages to the witness(es) in order to help respond to any and all questions.” Matter of Tara Crosby LLC, 2021 WL 1699883, *4 (E.D. La. April 28, 2021).
The above-mentioned cases not only establish that in-deposition texting of a witness is improper and sanctionable conduct, but they also provide an avenue for attorneys to call out this improper behavior and hold violating attorneys and litigants accountable. If you ever suspect that opposing counsel is communicating with the witness during a remote deposition, or better yet, if you elicit testimony confirming it, do not be afraid to put the issue before the judge.