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On Demand 1h 09s

The Ethics of Online Depositions

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The Ethics of Online Depositions

Depositions are an aspect of litigation that is fraught with ethical peril. There is little ability by the opposing party to regulate the preparation of the deponent, because the opposing party is not present. Unless the parties invite court intervention, no judge is present during the deposition itself to police the way the deposition is defended and taken. The format of online depositions present additional challenges. In this course we’ll discuss ethical traps for the unwary in the context of a realistic hypothetical employment discrimination case where online depositions are occurring

Transcript

- [Veronica] My name is Veronica Finkelstein and in this presentation we are going to discuss The Ethics of Online Depositions. In this presentation, you will learn all of the following. First, how to ethically prepare a deponent for an online deposition. Second, how to ethically defend a deponent who is being deposed online. And third and finally, how to take an online deposition in an ethical way. Let's get started. Before we begin by talking about specific tactics, let's talk for a moment about deposition ethics more generally, depositions are a regular part of litigation. If you handle civil litigation, it is very likely that you will take many more depositions throughout the duration of your career than you will actually try cases. Depositions and other pretrial matters are really the bread and butter of civil litigation. And so they are something that as civil litigators, we handle on such a regular basis that we often don't stop and take a moment to think about why we handle 'em the way we do or whether or not we're handling them in the most ethical manner. Whether you take depositions live in person or whether you take them online, they are a critical discovery tool. They are a way that we create a factual record. If you think about most discovery in civil litigation, it exists before you as the attorney become involved in the case. Documents may have been created by your client or by the opposing side. It is depositions and interrogatory responses that we as lawyers help shape and create. So they are a way that we supplement and we create a factual record that might be used either in a dispositive motion, like a motion for summary judgment or that might be used at trial perhaps to impeach a witness or to refresh recollection. So depositions are our way as lawyers of shaping and creating some of the facts that are developed throughout the discovery process of a case. And so they are critically important. But not only are they important, they are rife for abuse for numerous reasons. One primary reason why they're an area where abuse of the ethical obligations we're all sworn to uphold is common is because when it comes to preparing for depositions, no one else is there. Typically, it's you or other people on your litigation team, perhaps a paralegal or another associate at your firm or another attorney from your organization and the deponent. Nobody else is there representing the opposing side and certainly there's no judge or jury present. So there's no one to rule or even to see your preparation and the preparation itself is often protected by privilege. Not only is opposing counsel absent from your preparation, but opposing counsel often does not get the opportunity to question your deponent about the substance of your preparation. So in a way, you essentially can do almost anything during the preparation of a deponent whose preparation is covered by privilege and it would be very hard for the opposing side to find out about it, let alone to do anything about it. Then when we talk about the deposition itself, it's also the case that judges are generally not present during the deposition unless there's some kinda problem and the parties reach out to chambers to get the judge involved. The judge doesn't even necessarily know that a deposition is happening. And when there is a problem that is raised to the judge's attention, it tends to be raised on a cold written deposition transcript as the record. And sometimes subtle dishonesty just isn't apparent from reading the transcript itself. Sometimes you kind of had to be there to understand how a opponent was being subtly coached or understand why opposing counsel was being domineering in a way that doesn't necessarily come through on the written transcript. So the long and short of deposition ethics is that no one is there to police the preparation and no judge is present during the actual deposition itself. And so they are areas where subtle abuse often goes unpoliced and sometimes even unrecognized. So that leads me to why there are temptations to cheat and to violate ethical obligations during depositions. Well, one reason why is what we just talked about on the prior slide because no one is there watching you do the preparation and no judge is generally present during the deposition itself, so there's no one to enforce the ethical rules other than the litigants and their attorneys themselves. So that's one reason why it's tempting to cheat because there's no one there really to call you on the carpet for it. Another reason why there's a temptation to cheat is that depositions are an area of litigation where some coaching is permitted. It's not the case that you cannot prepare witnesses at all to be deposed. In fact, you'd be violating your ethical obligations and your duty of zealous advocacy if you did not prepare witnesses at all, you should prepare witnesses. So some amount of coaching is not only allowed, it's encouraged under the ethical rules, and yet there is a gray area and a line upon which coaching becomes not appropriate, but rather over the line and inappropriate. It becomes essentially encouraging the witness to lie, encouraging the deponent to conceal facts, and it becomes the difference between good coaching, which is encouraged and allowed and inappropriate coaching, which is discouraged and that's often a fine line. So you see on the slide that I have an example of two coaches here. I have Bruce Bogie, the coach of the San Francisco Giants, a very successful coach, and I have Tommy Lasorta, the coach of the Los Angeles Dodgers, a coach who at least in this image with Youppi, former mascot of the Expos team from Montreal that doesn't exist anymore, got himself kicked outta the game for getting in a fight with Youppi during that game. Just to illustrate the difference between good coaching and bad coaching. Good coaching walks up to the line and enables the team to win in an appropriate manner. And bad coaching is a distraction from the ultimate goal of litigation, which is to get to the truth. So that's another reason why there's a temptation to cheat because sometimes the line is very blurry and it's hard to tell whether or not what you're doing is appropriate coaching or is stepping over the line and actually interfering with the forensic process of getting to the truth. When we're talking about not just depositions but online depositions, there's an even greater temptation to step over the line. The reality is that when a deposition is being handled online, everything about that deposition feels a little less real. It doesn't have the formality of the deponent coming down to a lawyer's office looking eye to eye in a room with opposing counsel, and sometimes with the opposing litigant, having a court reporter who's physically present in the room swearing in the witness, everything just seems a little more ephemeral and a little less real. And since the pandemic, we're very used to doing things online and treating them a lot less formally than we would treat them if we were in person. When you are being deposed from your home, you're in a familiar place with sometimes your family and pets around you, and that informality can cause the deponent and sometimes also the advocates to let their guard down and instead of strictly adhering to the rules being a little more loosey-goosey and lenient about how they handle procedure. In addition, the same technology that allows online depositions, platforms like Zoom and WebEx and Teams, all of those great technological advances that make it possible for us to take depositions online, also have tools embedded in them or functions that can be used to skirt the ethical rules in a way that you cannot do it when you're taking a face deposition. For example, if you have a Skype window open instant messaging with the witness, you can communicate inappropriately with the witness who is being deposed in a way that opposing counsel perhaps will be totally unaware of and cannot see. That would be much harder to do in an in-person deposition. If you were similarly trying to pass notes or text or otherwise whisper to or communicate with a deponent in a live deposition, that would be very obvious to opposing counsel. But the beauty of online deposition is that they give us all of the functionality of computers during the deposition, and that makes it possible for us to take even video depositions online, but it also makes it much easier to cheat and much harder for opposing counsel to detect that cheating. In some cases, the cheating may actually come from the deponent and not from opposing counsel. So perhaps the deponent has an extra window up on his or her computer and is looking at answers that are being communicated by someone and the attorney who's representing that deponent isn't even aware that it's happening because the attorney is in a different room, in a different place on a different computer and isn't seeing what's happening on the deponent's screen. So there's just a tremendous temptation when we're talking about online depositions for any individual involved in the process, be it the deponent, other litigants or the advocates, the attorneys to cheat. Now you may be asking yourself, why does it matter? I mentioned previously the duty of zealous advocacy. If you're intending to try to litigate a case and win, why does it matter if you bend the rules a little bit to do so? Well, unethical witness preparation, unethical questioning during a deposition, unethical defense during a deposition directly undermines the entire purpose of civil litigation, which is to have a level playing field. If you take a step back and think about our entire system of justice, everything about our system is designed with one idea in mind. What is the best way to get to a just outcome? How do we make the process fair? And if some advocates are playing by the rules and other advocates are not, it undermines our ability to get that just outcome. It means that one litigant is taking an advantage for himself or herself that the other litigant is not. The reality is when you look at your duties and your obligations as a lawyer, when you look at your obligation to be ethical and follow the applicable rules of professional conduct, you are far more likely to get caught violating rules in other contexts other than depositions, especially online depositions. You may never get caught cheating during a deposition, but whether or not your conduct is appropriate and ethical should never turn on the likelihood that it's going to be detected or the likelihood that you are going to be sanctioned. As attorneys, we are part of a self-regulating field. That is how our rules of professional conduct are structured. So it shouldn't matter whether or not you're likely to be caught or punished or whether there's likely to be an adverse impact on a particular piece of litigation. None of those things should color your decision as to whether or not you follow the rules. Ethics really matter, and the North Carolina Supreme Court said it very well in the Brooks versus Brooks case. What the court said is that it's a sad mistake to suppose that the practice of the law is a game of hazard, to be won by shift, subterfuge, deception and dissembling. On the contrary, the law requires of those who practice in its courts, the strictest and most delicate observance of candor, truth, integrity, justice, and fair dealing in the conduct of all legal proceedings in and out of court. So what's clear from the North Carolina Supreme Court is that your ethical obligations have to take into account not only your duty of zealous advocacy and your desire to win on behalf of a client, but also what upholds the fair balance of power and assures that our civil litigation system will lead to a just outcome and your ethical obligations apply just as much when you are not in court as when you are in court. In fact, I would argue to you that it almost matters more because you're less likely to be caught. It is more important that you follow your ethical obligations because that's the right thing to do then because you are concerned about the possible consequences if you don't. Now in this presentation, we're gonna talk primarily about your ethical obligations under the Model Rules of professional conduct. So let's just take a moment to talk about what the Model Rules are. The Model Rules are a set of rules and commentaries that are promulgated by the American Bar Association, and they are designed to set the goalposts of what ethical and professional responsibilities apply to lawyers, to members of the legal profession across the United States. They are a set of rules that can be adopted in whole or in part by any of the states within the United States, within any jurisdictions within the country. The Model Rules themselves are not binding law, rather they are intended to be a model that jurisdictions can use in adopting and drafting the rules that apply to lawyers who are barred and practice in that jurisdiction. That being said, the Model Rules of professional conduct not only state the general norms but have been widely adopted across the states. All 50 states and the District of Columbia have adopted rules that are based at least in part on the Model Rules of professional conduct. And many jurisdictions have adopted essentially all of the Model Rules with only very minimal changes. Even if you are in a state that has rules that vary in some ways from the Model Rules of professional conduct, they're still useful in looking to what the general norms of our profession are. And so because you may be in a different jurisdiction, we are gonna talk in this presentation not about the rules of your particular jurisdiction or any individual state, but about the Model Rules. But I would remind you that when you're out in practice, it's important for you to consult the actual applicable rules of professional conduct for your jurisdiction because again, the Model Rules are not binding law anywhere, it's the rules of your jurisdiction that apply. But in this presentation, we're gonna focus on the Model Rules so that it's generally applicable to lawyers who are barred in all different jurisdictions, and again, because they state general norms. Now, as we talk about the different phases of deposition practice where ethical quandaries can arise, we're gonna talk through a particular realistic scenario that you might encounter in a particular piece of civil litigation. So here's the scenario. You are defense counsel in an employment discrimination case. The case has been brought by a plaintiff employee named Eliza, and Eliza claims that she was passed over and not selected for a promotion because of her sex, because she's female. According to Eliza, her direct supervisor, Stan, made several derogatory and negative comments about women in the workplace. And then when the time came for the promotion, Stan, that same management employee who made negative comments about women was making a choice between Eliza, a female candidate and her coworker Carl, a male candidate. Stan selected Carl the male candidate, not withstanding that Eliza had more experience and higher productivity. And so now we are defending this case. Let's begin by talking about some of the ethical quandaries that can arise in preparing a deponent for an online deposition. Let's say that you meet with Stan on Zoom. He seems really nervous and as you're talking through the issues in the case and getting to know him and explaining the context of the case and how the deposition is likely to proceed, he seems to be typing verbatim, word for word everything that you discuss with him. Now, you take a moment in the prep to stop and caution him that it's okay for him to take notes, but if he brings those notes to the deposition, he's going to make the notes discoverable. If he's looking at them and relying upon them to refresh his recollection, he's creating a situation where opposing counsel might get to see those notes. When you say that to Stan, he seems surprised that you're even aware that he's typing and he asks you, "Can you see my screen?" You tell him, "No, that's not how Zoom works. "I can't see your screen, "I can only see your face on the video." And that prompt stand to ask, "Well, will opposing counsel be able "to see my screen during the deposition?" And again, you explain, "Nope, that's not how Zoom works. "All they'll be able to see is his video, "nobody will be able to see his screen." So Stan says, "Well then if I have my notes open during the deposition, "no one will be the wiser, no one will be able to tell." Now you have an ethical quandary, how should you counsel Stan? Well, let's take a look at the Model Rules and discuss how they might apply. The rule that applies most directly here is Rule 2.1. The rule tells us that in representing a client, a lawyer has to exercise independent professional judgment and render candid advice. And in rendering advice, the lawyer may refer not only to the law but to other considerations such as moral, economic, social, and political factors that might be relevant. So here you have a situation where a deponent is essentially asking to cheat. If the deponent is looking at notes during the deposition, the notes are discoverable. Opposing counsel should be made aware that the notes are being relied upon and those notes should be turned over to opposing counsel. If this was an in-person deposition, there would be no question that if the deponent pulled out a piece of paper or opened a notebook and started looking at it while answering questions, opposing counsel would be entitled to ask to see those notes. And because it would be happening right in front of opposing counsel, undoubtedly, if opposing counsel was not asleep at the wheel and was paying attention, opposing counsel would indeed ask to see those notes. Applying this to the online situation, if it's clear that the notes would be discoverable and it's clear that it would be easy for opposing counsel to detect that those notes were being used in person, if the online format makes it more difficult for opposing counsel to tell that notes are being relied upon, that really doesn't change the analysis as to whether or not they would be discoverable and whether or not they should be turned over. And so counseling the deponent that he can exploit and take advantage of the online format to hide a set of circumstances that clearly are designed to prevent and shield from discovery, something that should be discovered is unethical. And even if it's not against the law, even if there is not a case on point in your jurisdiction that addresses whether or not, someone who is being deposed can look at notes without disclosing them, the reality is that the general norms of how depositions proceed are quite clear and that if this was in person, this would not be permitted without the notes that the deponent was relying upon being subject to examination by opposing counsel. And so from a moral point of view, it would be inappropriate to counsel the deponent to exploit technology to prevent something from being discovered that it's clear would be discoverable if we took the online deposition and we compared it to an in-person context. So here you should counsel Stan again that if he's going to look at something during the deposition that's going to be discoverable and that you are not going to endorse or assist him in any way in using technology to do that covertly. And indeed, if he feels like he needs to look at something during the deposition, perhaps you encourage him to rely upon something that has already been turned over in discovery or that you don't have qualms about turning over. Now his notes of the prep raise issues when it comes to potentially attorney client privilege, potentially attorney work product, you probably don't wanna turn those over. But perhaps there's something else that you don't have a problem turning over, something that's already been exchanged in request for documents or otherwise given over in discovery. And perhaps you could encourage Stan that if he needs to look at something, he should ask opposing counsel to see the memo to review his emails, something that is already turned over in discovery, but you certainly should not assist him in skirting the general norms that would be applicable if this deposition was in person. So let's say that you continue the prep. Now you're beginning to discuss the factual chronology with Stan. He states clearly and emphatically that the conversation where Eliza claims he made negative comments about women occurred after the decision was made on the promotion. Now you look back at your notes from the first time that you met with Stan and that doesn't seem right based on your notes. So you ask him, are you sure about that? And you let him know that in your notes you had written down that the derogatory comments that are alleged to have happened predated the promotion decision, and then you open the interrogatory answers which Stan actually verified. You share your screen on Zoom so that he can see them and it says clearly in those interrogatory responses, which he verified that the comments that are alleged to have occurred predated the selection. He says to you, "Oops! I guess I got the dates wrong. "I'm pretty sure it was after." So Stan says, "What should I do if they ask me about that "during the deposition?" And the question for you is, what should you do now that you've learned this information? Well, let's take a look at Model Rule 3.4, fairness to opposing party and counsel. It tells us that a lawyer shall not do a series of things and that includes obstructing another party's access to evidence, falsifying evidence or counseling or assisting a witness in testifying falsely or otherwise disobeying in a knowing way any obligations that have been ordered by the court in most circumstances. So here it's fairly clear that if the interrogatory responses are wrong, you have an obligation to make sure that they are corrected. Probably you should amend those interrogatory responses before the deposition even begins. That probably is the best way to handle it. But you certainly cannot counsel Stan to lie during the deposition in order to smooth over the fact that there are incorrect responses in these interrogatory responses. You're going to have to deal with that in a way that is fair to opposing counsel. You can't obstruct their ability to ask Stan questions about the inconsistency and he's just going to have to explain that he got it wrong when he initially verified the interrogatory responses. Now you can counsel him to make the testimony better as long as it's truthful. Perhaps there's a really good reason why he got it wrong initially. Perhaps he subsequently spoke with somebody who refreshed his recollection about the timing or he found an email that reminded him about the timing. So maybe he has a good explanation and it behooves you as a zealous advocate for your client to try to bring out the bad and encourage Stan to truthfully tell the story of why he got this wrong. But you certainly can't encourage him to lie, you can't simply cover it up. And you probably have an obligation not only to counsel Stan well about his answers during the discovery process and in the deposition, but you probably also have an obligation to amend those interrogatory responses as well. You shouldn't just let them sit out there with the lie in them. The procedure and and the entire thrust of the adversary system contemplates that there is gonna be a fair marshaling of evidence by both parties. And so it's really important that if you notice that there is something that you have put into discovery that is false or that is incorrect, that you take some steps to try to fix that. All right, the prep is almost over. Several times during the deposition while you were preparing him, Stan's child walked into the room. Every time it happened Stan got completely distracted, started paying attention to the child. He kept on answering questions, but he gave poorly worded and confusing answers. And you're really concerned that if the child makes an appearance during the actual deposition, it's gonna substantively affect Stan's answers. So you ask him, would it be possible to hire a sitter to watch the child during the deposition? And Stan's response is, "Okay, well will you pay for it?" And the question for you is, can you pay for a babysitter? Is that something you're allowed to do? The rule that applies here most directly is Model Rule 1.8 specific rules having to do with current clients. And subsection E of Rule 1.8 gives some specific guidelines for when lawyers are allowed to provide financial assistance to a client. As a general matter, a lawyer is allowed to advance court costs and expenses of litigation. And I've heard some arguments that things like transportation of witnesses and parking fees might fit under advancing costs for a litigation. And if those things fit under the definition of advancing costs, then paying for a babysitter is fairly similar. It's a way of making sure that the opponent can be there for the deposition. In addition, when the client is indigent and it's a pro bono matter, there's a whole variety of other things that the lawyer can pay for. It seems very unlikely given the facts of this case that this is an indigent client. So the real question becomes whether or not these are the sort of advanced court costs and expenses of litigation that can be advanced and that can be the subject of either repayment later or can come out of a contingent fee. And I think this is an instance where it's important to look in your particular jurisdiction and see whether or not there has been any guidance by the bar in your state about what does and does not constitute court costs and expenses of litigation. There's certainly a good argument here that if in your jurisdiction things like parking fees and transportation and putting a lay witness up in a hotel so that they can be available for an in-person deposition, if all of those things would be covered for a live deposition, then this is tantamount to the same sorts of expenses only in the online context. But I do think it's important that you check within your jurisdiction because there may be specific disciplinary decisions that address this rule. So what tactics cross the line when you're preparing a deponent for an online deposition? Well, just as in a live deposition prep, any sort of encouragement to the deponent that he or she lie is unethical and crosses the line, so is suggesting or encouraging lying, opening the door for the deponent to lie, saying things to the deponent like, you can't lie under oath, but nobody would know if you said X, Y, z, or nobody would know if you were secretly consulting with someone else during the deposition or nobody would know if you were misrepresenting the facts. It's also unethical to tell the deponent what to say. Now you can and should prepare the deponent to tease the information out so that what the deponent knows comes out in a way that is organized and helpful to the case. That is absolutely fine. But telling the deponent what to say or telling the deponent not to say certain facts that the deponent believes to be are true does cross the line. In addition, putting undue pressure on the deponent is also unethical. Telling the deponent will lose if you say a certain thing. All of these are unethical tactics that you should avoid. Now let's move on to defending the deposition. It's a few weeks later and now it's time for the deposition itself. You log on to Zoom and you see that in the Zoom room are the court reporter and Stan and also opposing counsel. Since everybody's logged in, you mute your mic and turn off your camera and you call Stan on his cell phone before the deposition begins. Now oddly enough, when you're talking to Stan, you feel like you can hear somebody in the background. So you ask Stan, who is that? And Stan says, "Oh, no worries, it's my coworker Felicity." She was there when the discussion was had with Eliza that Eliza is so concerned about when those comments were made and Felicity has a much better memory than I do. "So what I'm gonna do," Stan says, "Is have Felicity sit off screen "and pass me notes to make sure "that I don't get the answers wrong." Opposing counsel hasn't specified that Stan be alone during the deposition. Should you allow this? Well, the answer is no, you shouldn't. Even without the instruction that the deponent be alone, this is fundamentally unfair. Stan is supposed to be testifying under oath about his personal knowledge and recollection. If Stan testifies based on what Felicity says, Stan's gonna violate the oath that he has to take at the very beginning of the deposition to tell the truth based on his own personal knowledge. And had this been an in-person deposition, this sort of cheating wouldn't be possible. Everybody would be able to see if Felicity was in the room. It's only the online format that creates a situation where this even would be possible. If it wouldn't be permissible in person, you shouldn't allow it online. And Stan should be told that Felicity has to leave the room. You should also advise Stan that non-privileged parts of preparation are fair game for questioning. And so the discussions that Stan and Felicity have had on their own are probably not privileged and our topics that may be inquired into during the deposition and moreover that they really may make Stan and possibly also Felicity bad witnesses, they may make them look biased and like they colluded. And moreover, if Felicity was not already noticed for a deposition, if she is feeding answers to Stan, she almost certainly will be noticed once counsel learns about this. And so there are both ethical and practical reasons to discourage this entirely. The rule that most directly applies here is first Model Rule 8.4, which says that it's professional misconduct for a lawyer to violate or attempt to violate any of the rules of professional conduct or knowingly assist another person to do so. It's also unethical to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation for that is prejudicial to the administration of justice. Knowing that a witness is gonna have answers fed to him by someone offscreen in a manner that clearly would not be allowed if this was an in-person deposition is dishonest and certainly it is prejudicial to the administration of justice. It is unethical and it would violate Rule 8.4. In addition, it would violate Model Rule 3.3, which requires candor to the tribunal. A lawyer cannot offer evidence that the lawyer knows to be false. If you are defending the deposition and Stan is being fed answers from Felicity. And Stan takes an oath at the beginning of the deposition and promises to tell the truth and to answer the questions based on his personal knowledge and you know that that is not what he's doing, that he is answering based on Felicity's knowledge and having answers fed to him. Even though we are not in a court a deposition counts as a tribunal, it counts as a proceeding before a court and that's important to remember in the informality that we sometimes fall into when it comes to online depositions. This is still a court proceeding and if you as the attorney allow Stan to present this testimony representing it as his own personal knowledge, when you know that not to be true, you are violating your duty of candor towards the tribunal. And that's true even if this deposition transcript never gets attached to a dispositive motion, never makes it's way in front of the court. The deposition proceeding itself is considered a part of the court process. And so any lack of ethics there would also violate Rule 3.3. Rule 1.0m gives us the definition of a tribunal and it makes it clear that when you're representing a client in an ancillary proceeding, which would include a deposition pursuant to the authority of a court, that is also considered to be covered by Rule 3.3. So for example, for this reason, Rule 3.3A3 which requires a lawyer to take reasonable remedial measures if the lawyer becomes aware that a client who's testifying in a deposition has offered evidence that is false, requires the same sort of efforts to correct that false testimony as would be applicable if that false testimony was offered on the stand in court during a trial. The comments to Rule 3.3 make it clear, specifically comment two, that the rule sets forth special duties of lawyers as officers of the court to avoid any conduct that undermines the integrity of the adjudicative process. And so that includes the same sort of conduct in a deposition as would include conduct at trial. If it undermines this forensic effort to get to the truth, lawyers should refrain from that conduct and refrain from allowing that conduct to go forward in a deposition just as much as in trial. All right, so let's move forward and assume that the deposition begins. Things are going pretty well. Stan is alone in the room. He followed your advice and sent Felicity away and he is answering all of opposing counsel's questions. Counsel asks Stan, "Isn't it true that in your 10 years "as a manager at this company "you never once promoted a woman?" All of a sudden on your screen a Skype window pops up, it's Stan. And the question he asks you in Skype is, "How should I answer this? "I don't really have a good explanation." What should you do? Well the answer is you should not be communicating with the deponent while he is testifying. Stan has taken an oath and it's as though he is on the witness stand. Now jurisdictions differ as to whether or not you can talk substantively about the case with a witness on breaks during the deposition, but no jurisdiction would allow the attorney to consult on the substance of the case during active testimony. It's clear that if we were in an in-person deposition, this would not be allowed. You cannot interrupt and feed the answer to the witness while there is a question pending in a deposition. Nor can you give Stan the answer that you think is best or suggest answers during prep, that crosses the line between shaping the witness's own testimony, learning the information that the witness knows and working with the witness so that information comes back out in a helpful way which is allowed and suggesting answers to the witness or suggesting testimony which is not. So how should you handle this? You should close the Skype window and refuse to communicate through back channels. Then as soon as Stan answers, you should probably request to take a break and reiterate to Stan, that Stan cannot communicate with you during the deposition, at least not through back channel ways. Now if you're in a jurisdiction that allows consultation about the substance on breaks, perhaps that's a time to take a moment to prepare Stan on the substance, but you should not be doing it while a question is pending in a covert way, exploiting and taking advantage of the online deposition format. In order to prevent this, you may wanna block any apps other than Zoom on your computer to make sure that you can't even receive any communications. And when you're preparing the witness, you probably wanna make it clear that you're not going to communicate in any way, be it text message, phone calls, Skype, any other kind of messaging except during breaks if it's allowed or after the deposition. Now this is separate and apart from consulting with the witness about issues of privilege, that generally is allowed during the deposition. But here Stan is not raising an issue of privilege, Stan is raising an issue of substance. Now before you have a chance to do anything, Stan answers, Stan says, "I've promoted several women, "I promoted Mary Jones in 2010 and Sheila Smith in 2011." You happen to know that is just not true and you know that Stan knows it's a lie also. In fact, Stan was assigned temporarily to a different role in the company between 2010 and 2011. So although it's true that Mary and Sheila were promoted during that time, you know that Stan had no involvement whatsoever in the selection process. You're not sure however that opposing counsel realizes this because opposing counsel hasn't asked Stan about the temporary assignment and may not realize that that temporary assignment took Stan out of the process of selection during that time period. So what should you do? Well, the deponent has now lied under oath and you can't allow the lie to remain or else it would violate your duty of candor to the tribunal. Again, it doesn't matter that this is an online deposition rather than a trial. Again, this is a Rule 3.3 type situation. The remedial measures that you need to take aren't spelled out in the rule itself. You have to to use your own judgment, but you can't allow the misrepresentation to remain on the record in an unchallenged and uncorrected way. Probably the best way to handle this is to ask for a break during the deposition. If you're permitted to speak about the substance in your jurisdiction, try to counsel stand to go back into the deposition after the break and correct the lie. But if Stan won't do that, you may have to make additional measures beyond that. You may have to either during the deposition or afterwards, let opposing counsel know that Stan's representations were not correct and you may even potentially have to flag this issue for the judge. And if it persists and it cannot be corrected, it may create a situation where you have to withdraw and no longer represent the company and no longer represent this particular client due to Stan's misrepresentation. But Rule 3.3 is quite clear and it applies just as much to online depositions as it does to trial. You cannot let that lie linger out there, especially in this fact situation where it's not just something that could be untrue. But you are quite clear that what Stan has done is lie under oath. The deposition continues. You discover that if you open a bunch of windows it can cause Zoom to lag. Now in the beginning of the deposition you worked out with the court reporter that if anybody seems to be lagging, the court reporter will flag that for all parties and a break will be taken so that whoever is having technical difficulties can troubleshoot and try to fix them. Can you use this technique to unofficially call a break in the middle of a question when Stan seems to be struggling? The answer is no. Model Rule 3.5 applies and it tells us that a lawyer shall not engage in conduct intended to disrupt a tribunal. Trying to crash the Zoom or lag the Zoom in order to prevent a witness from having to answer a difficult question or even delay the witness answering that question is exactly the kind of conduct that would be prohibited under Rule 3.5. If you wanna analogize this to a live in-person type setting, it's as though we were a trial and you know your witness is about to give a bad answer so you fake a heart attack or spill some coffee and create a distraction that clearly would be prohibited under Model Rule 3.5. And in an online setting, the fact that you are doing it by using technology does not change the analysis that would similarly be prohibited. Now let's move on and talk about some of the ethics of taking depositions. It's a few days later, it's now your turn to take a deposition and you are deposing Eliza online. Having learned your lesson from preparing Stan and watching his online deposition and all of its ethical problems, you give a series of very strict instructions at the beginning of the deposition to ensure that Eliza and defense counsel do not cheat. And you get Eliza's confirmation to each of these instructions on the record in the deposition. The deposition is going really well, in fact better than you imagined. On the other hand, it doesn't seem like opposing counsel realize how well this deposition is going for you. Opposing counsel seems distracted and keeps looking in the upper left corner of the screen. It occurs to you that it's probably the case that opposing counsel is seeing some kind of popups from other applications. Maybe opposing counsel has email open and keeps getting notifications of emails coming in. And then at one point it appears that opposing counsel's audio has cut out so that counsel can't hear your questions and answers. The question is, should you press Eliza hard for untrue admissions while you have the advantage? Well it certainly would be tempting, right? It's not your job to represent the other side, it's defense counsel's job to take the deposition and that's what you're doing and it's opposing counsel's job to pay attention and defend the witness. But if your goal is to get to the truth, are you doing that by exploiting technology to extract hard statements and admissions that you're not really entitled to that are untrue? The answer is no. There always has to be a balance. There's a balance between your duty to zealously advocate but you can't cross over the line and engage in conduct that is detrimental to the administration of justice. The rule that most directly applies here is Model Rule 1.3, which gives us some of the boundaries of the attorney-client relationship. It says you have to act with reasonable diligence and promptness in representing a client. But that doesn't mean that you have to take all steps to win, take unfair advantage. And that's the sort of thing that you would be doing if you exploited the fact that opposing counsel was either not paying attention or due to technical glitches, was unable to defend the witness and you push the witness to try to get false admissions to get information that you know to be untrue and that you're not entitled to. That would be beyond the bounds of the sort of diligence that you are supposed to have. Now, opposing counsel may also have violated some ethical obligations as well. Certainly if opposing counsel just does a bad job or isn't paying attention, that's a bit of a different situation than when you become aware that technology is preventing opposing counsel from properly defending the deposition. But certainly you wanna pursue matters on behalf of your client in a way that doesn't create an unfair system of justice and exploiting and taking advantage of the fact that opposing counsel can't hear your questions. To ask unethical questions in that time period probably would violate the rule. Tactics that amount to misrepresentation are just plain unethical. And that is true whether we are talking about an online context or we're talking about an in-person deposition context. Rule 4.1 prohibits a lawyer from knowingly making a false statement of material fact. So if you misrepresent the facts to Eliza in a way to get her to agree with them when opposing counsel's audio has cut out, you would be violating Rule 4.1. And as we've talked about several times throughout this presentation, Model Rule 3.3 prohibits a lawyer from making or presenting any false statement and that includes false statements during depositions. So if you take advantage of a technical glitch in order to get false statements on the record, even though this isn't your witness, you're not the one who prepared this witness, you're not the one who presented this witness for a deposition. If you knowingly are eliciting false facts and exploiting the online technology to do that, you would be violating rule 3.3. Okay, let's assume that the deposition continues. Eliza is answering all of your questions with what seems like a normal rate of speed. This all seems just the way it would be if this was an in-person deposition. All of a sudden something changes, Eliza stops answering right away. And at first you're not really sure what's going on. You're not sure if Eliza is having some kind of technical problem like maybe is getting a bunch of popups or there's something lagging on her Zoom or if this delay is because she's thinking about the answer and she's not really sure what the answer should be. All of a sudden you see a private message pop up in the chat function on Zoom. This message is sent only to you, not to everybody else in the Zoom. And what the message says is, these questions are hard, should I admit that I was less qualified than the selected applicant? You read that message and you think, I'm not sure that message was meant for me. In fact, I don't think it is. In fact, I think that message was probably Eliza trying to communicate with Eliza's own counsel. So should you reply, what should you do? Well this is an ex parte communication. Eliza is represented in this particular deposition and this is a communication about the subject of the representation. You don't have permission from opposing counsel to be having ex parte communications with Eliza, so you shouldn't reply. But this also suggests that Eliza is improperly being coached and is improperly communicating with her counsel during the deposition. So this is probably a good reminder from a practical point of view that you need to give really good instructions at the beginning of the deposition and you probably need to explore whether or not Eliza is following those instructions not to communicate with anyone else during the deposition. And you probably want to explore them on the record during the deposition. If Eliza is being improperly coached, if there's improper communications during the deposition, it could be grounds to stop the deposition and grounds for discovery sanctions. It depends on the nature of the communication. What you do wanna do is make sure that you have a clear record of what happened in case you need to later file a motion. Because remember, if this isn't a video deposition, the work product that is gonna come out of this deposition is just a transcript and that transcript is very unlikely to show the Zoom chat. So if you are expecting that you can raise this issue with a judge later and simply argue that you received this chat and that the chat is evidence of the fact that Eliza was being improperly coached. Keep in mind the fact that once this deposition ends and you log out of the Zoom, that evidence of the chat may be gone or may not be available to you. And so if this is something that you foresee that you are going to want to explore later, you need to make sure that you make a clear record of it on the transcript so that if you have to raise this in a discovery motion, there is evidence to support your discovery motion. But let's take a step back and just talk about the ethical rules that are would be violated here if you communicated with Eliza. First of all, it would be dishonest if you assumed the role of opposing counsel and communicated with Eliza and in some way misled or represented to her that you were her counsel, you were the one who was defending her in the deposition. That would be dishonest, that would be interfering with the attorney-client relationship between Eliza and her counsel. And remember, she's the plaintiff here in this case. She's clearly the opposing party. She's clearly antagonistic towards you. It would be very inappropriate for you to be having ex parte communications with her. That would violate Rule 4.2 of the Model Rules of professional conduct, which governs communication with persons represented by counsel. And it tells you that when you are representing a client, so when you're in an adversarial situation, which we obviously are in this employment discrimination case, you cannot communicate about the subject of the representation. You cannot talk about the substance of the case with a person who you know to be represented by another lawyer in the case unless you have the consent of that lawyer or you're authorized to do so by law or by a court order. So here before you can communicate with Eliza in any way, you likely need the permission of opposing counsel. The fact that Eliza was the one who initiated the chat and that she reached out to you, doesn't change this analysis. Model Rule 4.2 still says, this is the kind of situation where you're not authorized to have the communication via court order. You need opposing counsel's permission before you talk to Eliza. And so I would close the chat to the extent that it's possible when you're setting up a Zoom deposition in the first place. I would block the chat function entirely. I would certainly discourage my client from communicating in any way using the chat function. Even during time periods that discussion with the client is permitted, I still would discourage it from being done via the chat in Zoom. There's just too much possibility for what happened here to be communicating with the wrong person for there to be some lack of clarity about what's going on. And it's too tempting to engage in that kind of discussion during the actual questioning when it's inappropriate. So here, you definitely cannot talk with Eliza and you probably need to do something to get on the record what's happened if you wanna litigate it later. Comment one to Model Rule 4.2 explains why it's so important not to have ex parte communications. This rule is designed to contribute to the proper functioning of the legal system by protecting a person who's chosen to be represented in a particular matter against overreaching by the other lawyers who are participating, who are not neutral. In this case, you represent the defendant, you represent the company, you represent a particular litigant who has a particular point of view, and that point of view is adverse to Eliza. It would be too tempting to communicate with Eliza in a way that would shape her testimony so that it would be helpful to your client and harmful to your case. And that is what Model Rule 4.2 is intended to do. And comment three makes it clear that it doesn't matter that Eliza who set the chat in the first place. Comment three, tells us that the rule applies even though the represented person initiates or consents to the communication. And it further tells us what you have to do if such communication occurs. A lawyer has to immediately terminate the communication with a person. If after that communication begins, the lawyer learns that the person is one with whom communication is not permitted under the rule. So it's not an excuse to take this opportunity to coach Eliza into better answers for your client that she's the one who reached out. It doesn't matter. You have to terminate the communication. You probably have to let opposing counsel know that this happened and it would behoove you to get some evidence on the record of inappropriate coaching if you think that that's an issue that you might later need to explore in a discovery motion. Don't give into temptation. As I have on the slide, ethics is knowing the difference between what you have a right to do and what is right to do. Our entire adversarial system assumes that if all of the lawyers are doing their part, if they're zealously advocating for their clients and they're acting within ethical boundaries, we will come to just conclusion. The truth will be shown at trial and the fact finder, typically a jury or in a bench trial, the judge, will be able to muster all of the facts and evidence at trial and come to the right outcome. The one that is supported by those facts and evidence, the one that is the truth. And depositions are a critical part of that process. Many times key evidence in a case that can make or break which party wins or loses is evidence that is going to come out and be explored during a deposition. Do not give into the temptation of thinking that because a deposition is not highly policed and especially with an online deposition, because you might be able to get away with unethical behavior that you know would be inappropriate in person but would be hard to detect online. Do not give into the temptation of thinking that that conduct is appropriate. Your professional obligations apply just as much in the forum of online depositions as they do when you are standing in the well of the courtroom before the jury. The takeaway of this presentation is as follows. It's really important for you to understand your ethical obligations. It's just as important for you to follow them in the context of an online deposition. From a practical point of view, it's helpful to think through all of the ethical norms that you would follow if you were taking the deposition live and in person. If you wouldn't do something during a live deposition, you should not do it during an online deposition or an online prep simply because you can get away with it. All of the same rules and norms apply. The fact that technology might change the context a bit does not change the analysis, and it's just as important for you to follow your ethical obligations when you are giving a deposition online, prepping a witness online, or taking and defending a deposition online as they apply when you are handling those same matters in person. Do not let the fact that technology makes it easier to cheat, affect your analysis. Continue to uphold the high standards of being a part of the judicial system, of being a representation of the court, even in the context of a deposition even where nobody is likely to detect that you have cheated. Don't give into the temptation.

Presenter(s)

Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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