New York Judge Weighs in on Coaching Witnesses During Zoom Proceedings
It’s hard to believe that in the span of just a few short months, lawyers across the country have suddenly become technologically adept and are using a host of remote technology tools, including videoconferencing software. In the blink of an eye, interacting via videoconference is now a daily occurrence for both attorneys and judges alike, whether it’s for for meetings, court appearances, or hearings.
This unexpectedly rapid rate of adaptation to technology has been impressive, and I would argue, unprecedented. I’ve been writing about legal technology for a decade now, urging lawyers to sit up and take notice of emerging technologies. And in the process, I’ve correctly predicted a lot of legal technology trends.
But this wave of adoption? I didn’t see it coming. It’s amazing the impact a pandemic can have on what had previously been a steadfast resistance to technology adoption by many members of the legal profession, isn’t it?
Of course, now that we’re all “zooming,” as I recently heard a judge refer to it, a host of issues are beginning to arise relating to the practicalities and the ethics of using videoconferencing tools in lieu of in-person appearances. It was the former that was recently addressed by a federal court judge in the Southern District of New York.
In Joffe v. King & Spalding LLP, No. 17-cv-3392-VEC-SDA, a motion was brought before Judge Valerie E. Caproni by plaintiff’s counsel. At issue was whether plaintiff’s counsel could insist that “the remote deponent…provide, while on the record, a recording or screen-share of the deponent’s monitor.”
According to the plaintiff’s motion, the goal behind this provision was to prevent coaching of the remote deponent by defense counsel: “(A)t an in-person deposition, it is virtually guaranteed that any notes or messages passed to the deponent during the testimony would immediately be seen by questioning counsel (and by the videographer); while, at…a remote deposition, in the absence of screen-sharing it is virtually guaranteed that, e.g., emails and instant messages sent to the witness’s computer mid-testimony, could never be seen by anyone else.”
In response the motion, the defendant asserted that the plaintiff’s request to view the remote deponent’s computer screen was unwarranted and unduly intrusive. Judge Caproni agreed.
She concluded that although it was within her powers to impose a monitoring mechanism, it was not needed in this case. She explained that there was no indication that defense counsel had behaved impermissibly in the past and she saw no reason to believe he would do so in the future. Accordingly she directed defense counsel to provide opposing counsel with notice if he intended to privately confer with a witness. Additionally she required both attorneys to, “for the duration of their respective depositions…close all Internet browsers, messaging applications, email clients, or any other Internet page or computer program that could enable the receipt or initiation of an electronic communication, other than the platform used for the deposition. Ms. Moss and Mr. Fine are further directed to close any other applications that could generate any pop-up notification or window during their respective depositions.”
A reasonable compromise, if you ask me, and an interesting outcome to an interesting issue of first impression. As COVID-19 cases surge in many parts of the United States, this motion was no doubt one of the first of many related to remote legal proceedings that will be raised in courts across the county in the coming months.
It’s a brave and strange new world out there, but fortunately we have the technology we need to conquer it and ensure that the wheels of justice can continue to turn. There will undoubtedly be bumps and bruises along the way, but our judicial system will adapt and, with a little help from technology and commonsense decisions like this one, justice will prevail.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.