By now, we have grown used to Zoom hearings, Zoom mediations and Zoom depositions. However, a case I heard discussed at the ABI Winter Leadership Conference points out that as ubiquitous as these technologically assisted interactions are, they can pose both challenges and perils to the unprepared.
In Agility Holdings, LLC v. North Shore Healthcare, LLC, No. 18-CV-8721, Dkt. #77 (Wisc. Cir. Court, Milwaukee County, Branch 18, 1/22/21), an attorney was taking a deposition by Zoom. During the deposition, his legal assistant received an email which was apparently intended for the witness. The email indicated that the attorney who was defending the deposition was communicating with the witness and helping him to answer questions. The attorney who was taking the deposition obtained a time-stamped transcript of the deposition and then propounded discovery asking for all communications between the attorney and the witness during times when the deposition was not on a break. The resulting discovery revealed that the attorney had been coaching the witness on how to answer questions with their theory of the case.
The deposing attorney then sought death penalty sanctions against the other side. The offending lawyer admitted his transgression and confessed to a lapse of judgment. The Court did not strike the pleadings, but did award sanctions against the attorney individually payable to the Court clerk, ordered the firm to reimburse the opposing party for its costs and precluded the witness from testifying at trial to any matters on which he/she had been coached during the deposition.
One takeaway from this case is that an attorney's opening sequence should (1) ask the witness whether he is relying on any notes or other documents, (2) instruct the witness not to communicate with anyone except during breaks, (3) instruct the witness to move his phone to a location where he could not consult it during the deposition and (4) instruct the witness to close email, chat messaging and any other means of electronic communication.
Acknowledgement: This case was discussed in connection with the panel Match Wits With the Experts! An Ethics Game Show Featuring the Audience. The panelists were Prof. Nancy Rapoport, Claire Wu, Tom Horan and Michael P. Richman. This was Mr. Richman's case. Because the opinion is unpublished, I am relying on the panel discussion for the particulars. Any inaccuracies in describing the case are due to my ability to listen and remember.
No comments:
Post a Comment