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The Seriousness of Texting and Emailing During Depositions

December 15, 2021
December 15, 2021

Due to the COVID-19 pandemic and the practicing of social distancing, legal events have been conducted virtually via Zoom, Teams or other remote means. It is especially important for attorneys and their deponents to be cognizant that there may be no texting and emailing advice during depositions. You may discuss deposition testimony before or after a deposition, but it is improper to coach or be coached about answers during a deposition. Just as it would be improper to hand notes back and forth during an in-person deposition regarding how to answer a question, the same applies to technological means as well.

On December 7, 2020, a Pennsylvania court held a hearing on defendants’ joint motion to dismiss based on deposition “improprieties.”  An employee and her counsel were present in a conference room together during a Zoom deposition. The attorney for the employee was not visible on Zoom during the deposition. Opposing counsel could hear off-camera whispers by the employee’s attorney prior to the employee answering questions. After the deposition, multiple co-defendants filed a joint motion to dismiss.  The judge reviewed deposition clips and found it “unmistakably clear” that counsel had provided multiple answers to questions asked of the witness during her deposition testimony and thus sanctioned both the deponent and her counsel. See Shimkus v. Scranton Quincy Clinic Co., LLC, No. 19-CV-3534 (Ct. Com. Pl Lackawanna Co., December 7, 2020.)

On November 18, 2021, a Florida attorney was suspended for 91 days because he texted a witness advice during a telephonic deposition (and for failing to tell the truth when questioned by opposing counsel and a judge.)  During the telephonic deposition of an adjuster in 2018 involving a workers’ compensation matter, opposing counsel heard typing sounds during the deposition. Opposing counsel inquired as to whether the witness and his attorney were texting one another during the deposition. The witness advised they were not and rather he had received a text from his daughter. Opposing counsel continued to hear typing throughout the deposition, although the witness claimed he had put his phone away. The deponent’s attorney inadvertently sent texts to opposing counsel instead of the deponent, advising him, “Don’t give an absolute answer...It’s a trap...Then say that is my best answer at this time.”  Because the texts were sent during the deposition, the Judge of Compensation Claims opined that they were not protected by the attorney-client privilege.

The Florida Bar filed a complaint against the witness’ attorney “alleging that he engaged in misconduct by coaching a witness during a deposition in a contested workers’ compensation matter and making misrepresentations regarding his misconduct.”  In disciplinary proceedings, the Florida Supreme Court found that the witness’ attorney obstructed access to evidence and violated an ethics rule banning conduct that is prejudicial to the administration of justice. See The Florida Bar vs. James, Derek Vashon, No. SC20-128 (November 18, 2021.)

“Indeed, Florida courts have recognized the fact that lawyers are ethically prohibited from coaching witnesses. The U.S. Supreme Court also has recognized the danger of unethical witness coaching which may occur if a lawyer is permitted to speak with a witness prior to completion of his or her testimony.” See Restrictions on Lawyers Communicating with Witnesses During Testimony: Law, Lore, Opinions, and the Rule, Judge Tom Barber (Vol. 83, No. 7, July/August 2009.)  

Chartwell attorneys pride themselves on ensuring witnesses are properly prepared for deposition. Thorough preparation and practice coupled with knowing what to expect during a deposition ensure our clients are knowledgeable and confident in deposition. As always, the key rule for any deponent is to simply be truthful.