Technology’s Effect on Advocacy
no published California decision has applied disqualification specifically as a remedy for remote- deposition coaching, Barksdale offers a useful federal model for cases where the offending counsel's conduct has so compromised the integrity of the proceedings that exclusion from future depositions is insufficient, but the trial court is reluctant to terminate the action. At the most severe end of discovery sanctions is terminating sanctions. Joven represents a current California example where the trial court tentatively granted terminating sanctions after defense counsel was shown to have sent more than seventy substantive coaching texts during multiple depositions. Terminating sanctions are reserved for conduct so egregious that no lesser remedy will preserve the integrity of the proceedings, requiring a record of willfulness and prejudice. Tucker confirms that California courts have the authority to issue them in coaching cases, and Joven shows a trial court is prepared to do so, even though they remain rare. Independent of sanctions, bar discipline is always available. The Florida Supreme Court suspended an attorney for ninety-one days for text-message coaching during a deposition. ( Florida Bar v. James (Fla. 2021) 329 So.3d 108.) The Presiding Disciplinary Judge of Arizona suspended an attorney for sixty days for using the chat feature to coach a client during cross-examination at a virtual trial. ( In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022).) The Massachusetts Board of Bar Overseers publicly reprimanded the attorney from Barksdale in 2023 and warned that future cases "may not be viewed as indulgently." ( Bar Counsel v. Rosin, No. 2023-12 (Mass. BBO Nov. 6, 2023).) Plaintiffs' counsel should consider a State Bar complaint in egregious cases, both because the conduct violates the California Rules of Professional Conduct and because the disciplinary
record builds the deterrent the case law has so far failed to create.
The Case for a Formal Rule
The remedies above are powerful in the cases that reach a ruling. But every case that reaches a ruling is one in which the conduct has already happened, the testimony has already been unduly influenced, and plaintiffs' counsel has already spent the time and incurred the cost of detecting, briefing, and proving misconduct that should never have occurred. That is the gap a formal rule would close. Practitioners, including this author, have urged parties to address these concerns by stipulating to a protocol at the outset of remote depositions. Stipulated protocols remain useful when opposing counsel will agree to them, but protocols depend on that agreement, vary case by case, and lack sanctions for violation. The conduct documented in the cases discussed above did not stop because the protocol option was available. A formal rule binding in every case, with pre-specified sanctions, would act as a strong deterrent to such conduct. California already regulates remote depositions through CCP § 2025.310 and CRC 3.1010. Section 2025.310 was significantly amended by SB 1146 (Umberg, 2020), CAOC-sponsored legislation codifying remote depositions in California by authorizing the deposition officer to attend by remote means and removing the requirement that the deponent be physically present. SB 1146 was a critical modernization of California civil procedure during the pandemic. It codified Judicial Council Emergency Rules 11 and 12, and it enabled the remote-deposition practice that is now standard in civil litigation.
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Consumer Attorneys of California
FORUM September/October 2026
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