Technology’s Effect on Advocacy
Neither section 2025.310, however, nor CRC 3.1010 specifically addresses coaching conduct, the use of devices during testimony, or visibility requirements for counsel sitting with a witness. Agnone read those provisions together to hold that an attorney cannot use CRC 3.1010 to remain off-camera while in the same room as the deponent, but that holding rests on judicial inference from rules written to enable remote depositions rather than to regulate the conduct within them. A formal rule governing conduct at videoconference depositions would build on the foundation SB 1146 established by adding the conduct standards the original legislation did not address. A recent experience by this author illustrates the problem. At the videoconference deposition of a former district director of a public entity, defense counsel sat in the same conference room as the witness but was not visible on camera. During questioning on a key document, deposing counsel heard defense counsel whispering answers, and observed the witness changing his answers to match. Defense counsel denied it on the record and the deposition continued. Review of the official video and audio afterward confirmed the whispered answers, the witness's acknowledgment of hearing them, and the corresponding change in testimony. Deposing counsel moved for a protective order and sanctions. The discovery referee substantiated the coaching conduct but declined to disqualify counsel or impose sanctions beyond a monetary award, citing the absence of published California authority authorizing further remedies for coaching during a remote deposition. That result, coaching substantiated on the record but no explicit remedy, is exactly why a formal rule is needed.
require all persons in the room with the testifying witness to be visible on camera throughout the deposition; prohibit any communication between counsel and the witness while a question is pending or testimony is in progress; require devices capable of receiving communications to be removed from the witness's possession and line of sight, subject to disclosure at the outset; and provide for inspection of the witness's environment on demand where coaching is suspected, with refusal treated as itself sanctionable. These are not new ideas. They are the standards careful practitioners already impose by stipulation. A formal rule would make them the default rather than the exception. A rule with text, prohibitions, and specified sanctions changes the calculation for counsel inclined to coach. The same counsel who would not whisper to a witness in front of a court reporter at an in-person deposition will refrain from whispering at a remote one, if the rule makes the prohibition explicit and the sanction determinable. The current framework, which depends on plaintiffs' counsel detecting and proving misconduct after the fact, has not deterred wayward counsel from truth-impeding conduct. A formal rule, applied uniformly, would. Videoconference depositions are now a permanent part of California practice. So is the misconduct that accompanies them. Fortunately, Agnone and other recent cases have given courts the tools to respond when the conduct is caught and proven. But responding after the fact is not the same as preventing the misconduct. A formal rule, with clear prohibitions and attached sanctions, would change the incentives for counsel inclined to coach and protect the truth- seeking function that depositions are supposed to serve.
The elements of such a rule are well-developed in the case law and the ABA Opinion. The rule should
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Consumer Attorneys of California
FORUM September/October 2026
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