Taking depositions by phone or Zoom invites abuse. In one 2018 deposition, the defense lawyer texted advice to the witness and was caught. The witness was an insurance adjuster who was testifying about a worker’s compensation case. Derek Vashon James, a Florida lawyer, represented the employer. The court reporter refused to swear in the adjuster, because she was testifying via phone, not on video.

The opposing lawyer, Toni Villaverde heard typing noises during the deposition. Villaverde asked the witness and James if they were texting. James said he received a text from his daughter. Villaverde asked James to put the phone away and stop texting. James agreed to do so. But, James continued to text and accidentally sent the texts to Villaverde:

“11:53 (James): Just say it anyway

11:53 (James): Just say 03/28

11:54 (James): In addition to the 03/28/2018 email containing the signed release I show…..

11:55 (James): Don’t give an absolute answer

11:55 (James): It’s a trap

11:56 (James): Then say that is my best answer at this time”

These text messages obviously are coaching the witness. Ms. Villaverde stopped the deposition when she noticed the text messages on her phone. Mr. James tried to convince her that the text messages were sent while on break. Ms. Villaverde then sought production of the texts and review by the worker’s compensation judge.

The judge found the texts were sent during the deposition and were not protected by attorney-client privilege. At a hearing before the worker’s compensation judge, Mr. James refused to admit he had sent the texts during the deposition. Later, during his discipline proceedings, he admitted he sent the texts because Villaverde was talking over the witness and interrupting the adjuster.

In a disciplinary proceeding, the Florida Supreme Court found the lawyer had lied during the hearing before the worker’s compensation judge. It placed Jame’s license on suspension for 91 days. It said James’ dishonesty was clear from the record. His actions obstructed access to evidence. James’ lawyer for the disciplinary proceedings said James was sorry for what he did. The lawyer said James believes this shows that we need to observe the ethical rules even during electronic proceedings. Yep…..

See ABA Bar Journal report here.