Technology’s Effect on Advocacy
The Remote Deposition Coaching Problem, and the Case for a Formal Rule By Scott E. Boyer
Videoconference depositions are now ubiquitous. What began as nearly mandatory during the pandemic is now the routine method for taking depositions in California. With that permanence has come a new and pernicious form of attorney misconduct in which counsel engage in real-time coaching of witnesses by text message, chat, off-screen signals, whispering, and refusal to appear on camera. The remote format makes the misconduct easy to commit and difficult to detect. When it occurs, it is profoundly antithetical to the truth-seeking function that depositions are supposed to serve. The problem is not theoretical. It is already happening. In Joven v. Dreyer's Grand Ice Cream Inc. et al. , 24CV075650 (Alameda Super. Ct., filed 2024), an Alameda County Superior Court judge recently issued a tentative ruling granting terminating sanctions after it was shown that defense counsel had sent more than seventy substantive text messages to witnesses during remote depositions, instructing them on how to answer questions. The case settled before the ruling was fully entered, but the judge had observed that the bell could not be unrung, and the testimony had been irrevocably affected. The offending attorney was reportedly suspended by her firm and ultimately separated from it.
In federal court, Barksdale ended with disqualification of the offending attorney, forfeiture of his fee in the case, and a public reprimand from the Massachusetts Board of Bar Overseers for coaching that occurred more than fifty times during a single remote deposition. The Florida and Arizona Supreme Courts have suspended attorneys for sending coaching messages to witnesses through text and chat. And in May 2025, the California Court of Appeal published Agnone v. Agnone, California's first appellate authority specifically affirming sanctions for conduct during a remote deposition that frustrates the ability to monitor for coaching, even without proof that coaching actually occurred. These cases are not isolated occurrences. They are a growing pattern. The remedies that California courts and disciplinary bodies have deployed (so far) are powerful in the cases that reach them, but they are reactive. They require plaintiffs' counsel to catch the misconduct and then pursue motions, often after the witness's testimony has already been tainted. The bell cannot be unrung. What California still lacks is a formal rule or statutory provision specifically governing conduct at videoconference depositions, with clear prohibitions and sanctions enacted to deter the conduct before it happens. Such a rule is overdue. The prevalence of videoconference depositions, combined with technologies that make coaching harder to detect than at in-person depositions, requires an explicit deterrent to protect the truth-seeking process. This article looks at the current legal landscape post- Agnone , describes the detection techniques plaintiffs' counsel are using
Scott E. Boyer is an attorney at The Homampour Law Firm in Los Angeles, where he represents individuals in catastrophic injury, wrongful death, and complex personal injury matters. He writes frequently on discovery practice and trial procedure.
scott@homampour.com
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Consumer Attorneys of California
FORUM September/October 2026
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